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England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Zambia v Meer Care & Desai (a firm) & Ors  EWHC 952 (Ch) (04 May 2007)
Cite as:  EWHC 952 (Ch)
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Strand, London, WC2A 2LL
B e f o r e :
| Attorney General of Zambia for and on behalf of the Republic of Zambia
|- and -
|Meer Care & Desai (a firm) & Ors
Mr Head and Mr Kramer (instructed by Reynolds Porter Chamberlain) for Mr Iqbal Meer a partner in the First Defendant
Mr Croxford QC and Ms Stanley (instructed by Barlow Lyde & Gilbert) for the Second and Eighth Defendants
Mr Veen (instructed by Direct Public Access) for Mr Naynesh Desai a partner in the First Defendant
Mr Bourne (instructed by Bray Walker) for the Fifth Defendant
Mr Fenwick QC and Ms Day (instructed by Barlow Lyde & Gilbert) for the partner in the Second Defendant
Hearing dates: 31 October 2006 – 22 November 2006, 29 November 2006 – 14 December 2006 (sitting as Special Examiner at the High Court Lusaka), 11 January 2007 – 27 February 2007
Crown Copyright ©
Peter Smith J :
|3||Details of Defendants|
|11||Why the action is brought in London|
|B||ZAMBIA – SOME POINTS TO NOTE|
|46||The Allegations in their financial context|
|59||The President's clothes|
|D||ZAMTROP CONSPIRACY GENERAL MATTERS|
|90||Burden of Proof|
|98||How the conspiracy worked|
|107||Events that are not coincidental|
|120||AFSL obtains a licence|
|E||OPENING OF THE ZAMTROP ACCOUNT|
|127||Formalities for Zamtrop Account|
|139||Finance Charter 1970|
|145||Significance of Finance Charter|
|F||CREDITS TO ZAMTROP ACCOUNT|
|161||Transfers into and out of the Zamtrop Account: Systems and Wilbain|
|204||Further transfers out of the Zamtrop Account|
|G||EVENTS LEADING TO DISCOVERY|
|218||Open Pandora's Box and take the money|
|222||FJT's Presidency Ends|
|H||CRITICISMS OF AGZ'S EVIDENCE|
|258||Allegations made about veracity of Third Parties|
|I||ZAMTROP ACCOUNT MONIES ARE GOVERNMENT MONIES|
|277||Purposes for which payments used|
|J||ACCESS FINANCIAL SERVICES LIMITED (AFSL)|
|330||Breach of fiduciary duty|
|L||INDIVIDUAL DEFENDANTS: VARIOUS ISSUES|
|427||Xavier F Chungu (XFC) (D7)|
|441||Dr Chiluba (FJT) (D3)|
|472||Stella Mumba Chibanda (SC) (D6)|
|486||Faustin Kabwe (FK) (D9)|
|503||Aaron Chungu (AC) (D7)|
|504||Francis Kaunda (Francis K) (D11)|
|519||Irene Kabwe (IK) (D10)|
|528||Boutique Basile (Basile) (D12)|
|541||Iqbal Meer, Naynesh Desai and Meer Care & Desai (IM, ND & MCD) (D1)|
|544||Churchill Hotel Agreement|
|593||Harptree Holdings Ltd|
|604||Further evidence of dishonesty|
|619||Blue Card warnings|
|644||Naynesh Desai (ND)|
|680||Knowing receipt where no beneficial receipt|
|685||Cave Malik (CM) Bimal Thaker (BT) and Bhupendra Bhailal Thaker (BBT) (D2)|
|716||Claims against BT, BBT and CM|
|724||Cave Malik & Co London (CM)|
|753||Commencement of association with FK/AFSL|
|765||CM begins to receive Zamtrop monies|
|770||Receipts from Redcliffe/Shansonga|
|813||Deception of Habib Bank|
|823||BT Changes His Story|
|836||Office of President Payments (OOP)|
|862||Cash Payments of £30,000 to FJT|
|869||Conclusion as regards BT|
|874||Quantum against BT|
|N||ATAN SHANSONGA (AS) (D5)|
|893||Claims against AS|
|895||Brief summary of claims|
|905||A number of preliminary observations|
|909||GT's evidence concerning AS's receipts and expenditure|
|911||Basis for AS's involvement|
|918||AS's fundamental credibility failing|
|931||AS's failure to keep records|
|938||Burden of Proof|
|949||AS comments on evidence generally|
|960||Zambian Lifestyle Yardstick|
|964||Payments to Stella Chibanda|
|969||Payments to CSW – Bob Standaert|
|974||Payments to Professor Mweene|
|975||Purchase of Motor Vehicles|
|984||Payments for School Fees etc|
|990||Credit Card Expenditure|
|1001||Other Credit Matters|
|1003||DGH Poly Products|
|1026||Conclusions as regards AS|
|P||THE BK CONSPIRACY|
|1060||Examination and Effect of Documents|
|1072||Fate of Government monies paid to ABN-AMRO and KBS accounts|
|1074||Payments to XFC|
|1075||Meer Care $1,299,456.70|
|1080||Payments from KBC Account credited to Meer Care Ledger 3556/001|
|1085||CM $176,985 direct and $275,058 indirect payments from KBC account|
|1088||Indirect payments from the KBC account to CM via MCD|
|1089||$200,000 Payment by CM to KBC account|
|Q||THE BK CASE: THE CLAIM AGAINST EACH DEFENDANT|
|1095||Claim against XFC|
|1100||Claim against FJT|
|1102||Claim against SC|
|1104||Claim against FK|
|1108||Claim against IM/MCD|
|1114||Claim against BT/CM/BBT|
|Zamtrop Conspiracy Liability|
|1133||Soriano, FJT, XFC, SC and FK|
|1134||IM, MCD and ND|
|1135||BT, CM and BBT|
DRAMATIS PERSONAE - DEFENDANTS
|"Meer Care"||Meer Care & Desai, the First Defendant, is a firm of English solicitors now practising at 4th Floor, One Great Cumberland Place, London W1H 7AL. At all material times the partners are and have been Iqbal Meer and Naynesh Desai. Mr Meer is a qualified Zambian lawyer. Between about May 1996 and January 2003 it acted on behalf of Access Financial Services Limited ("AFSL") and others as appears hereafter.|
|"Cave Malik"||Cave Malik & Co, the Second Defendant, is a firm of English solicitors practicing at 4 Churchill Court, 58 Station Road, North Harrow. There are other businesses practicing in Lusaka under the name of Cave Malik ("CMZ") and Ndola ("CMN"), Zambia. Mr Bimal Thaker, the Eighth Defendant, is a partner in Cave Malik. Mr Bhupendra Thaker, the Eighth Defendant's father, has at all material times been a partner in Cave Malik. Between about January 1996 and January 2003 Cave Malik acted on behalf of the Access companies and for a number of the directors and/or shareholders of the Access companies in relation to matters concerning the affairs of the Access companies. Prior to 31.5.96, Bimal Thaker was a partner in the firm of Kehimker & Co. On 31.5.96; Kehimkar & Co changed its name to Cave Malik.|
|"FJT"||Dr Frederick Jacob Titus Chiluba, the Third Defendant, was President of the Republic of Zambia between 1991 and 2001.|
|"XFC"||Xavier Franklin Chungu, the Fourth Defendant, was at all material times to this action Permanent Secretary of the Office of the President ("OOP"), Special Division also known as Zambian Security Intelligence Services ("ZSIS") and Director General of ZSIS.|
|"AS"||Atan Shansonga, the Fifth Defendant, was employed during the 1990s by subsidiaries of the Zambian Consolidated Copper Mines ("ZCCM"), including Metal Marketing Company and Zal Holdings Ltd. Between 2000 and 2002, Mr Shansonga was the Zambian ambassador to the United States of America and to a number of additional countries in the Americas.|
|"SC"||Ms Stella Chibanda, the Sixth Defendant, was at all material times a Director in the Department of Loans and Investment in the Ministry of Finance of the Government of Zambia.|
|"AC"||Aaron Chungu, the Seventh Defendant, was at all material times from October 1995, the executive director of AFSL until AFSL was seized by the Bank of Zambia in January 2003. He was a 5% shareholder in AFSL from 1 January 1998 until his shares were seized by the Government of Zambia in January 2003. He was responsible for the day of day running of AFSL in respect of financial transactions undertaken by it. He was also a director of several Zambian companies including DGH Poly Products, Lusaka Trust and Corporate Services (also the manager) and Roan Investments.|
|"BT"||Bimal Thaker, the Eighth Defendant, is an English Solicitor, was also qualified to practice law in Zambia, and is a partner in Cave Malik.|
|"FK"||Faustin Kabwe, the Ninth Defendant, was at all material times the Chief Executive Officer of AFSL and a close friend and financial adviser to Dr Chiluba and XF Chungu. Faustin Kabwe holds a number of other directorships, including of Pigott Maskew Limited, Lusaka Trust and Corporate Services Limited, Zamdaell Limited (all Zambian registered companies) and Mining Industry Support Services Limited (an English registered company). Faustin Kabwe holds shares in a number of companies including Lusaka Trust and Corporate Services Limited, Mining Industry Support Services Limited, Syblis Limited.|
|"IK"||Irene Kabwe, the Tenth Defendant, is the wife of Mr Kabwe, and a 55% shareholder in AFSL.|
|"Francis K"||Francis Kaunda, the Eleventh Defendant, was a director and the Chairman of AFSL and ALL at all material times until the Bank of Zambia took possession of the Access companies in January 2003. He was a 10% shareholder in AFSL. Francis Kaunda was also the Chief Executive Officer of Zambia Consolidated Copper Mines and was Chairman of the Privatisation Negotiating Team ("PNT") set up by Dr Chiluba in relation to the privatization of the copper mines between about 1997 and 1999. He is also the beneficial owner of Epakor Investment SA.|
|"Boutique Basile"||Boutique Basile is the trading name of Antonino Basile, the Twelfth Defendant, who operates a tailor's shop from 2 Rue Sigismond Thalberg 1201, Geneva, Switzerland.|
|"Nebraska Services"||Nebraska Services Limited, the Thirteenth Defendant, is a company incorporated under the laws of the British Virgin Islands, the alter ego of which is Mr Atan Shansonga.|
|"MISS"||M.I.S.S.L. Associates Limited ("MISS"), the Fourteenth Defendant, is a company incorporated under the laws of the British Virgin Islands. MISS is owned and/or controlled by Atan Shansonga. Atan Shansonga holds a Power of Attorney on behalf of MISS and is its directing mind and will for all purposes material to this action.|
|"Hearnville"||Hearnville Estates Limited, the Fifteenth Defendant, is a company incorporated under the laws of the British Virgin Islands. Faustin Kabwe was concerned in the management of Hearnville Estates Limited. It is averred that at all material times in relation to this action, Faustin Kabwe and Bimal Thaker were the directing mind and will of Hearnville Estates Limited.|
|"Jarban"||Jarban SA, a company incorporated under the laws of Luxembourg and is owned and controlled by Faustin Kabwe. It is averred that at all material times in relation to this action Faustin Kabwe was the directing mind and will of Jarban.|
|"Soriano"||Raphael Soriano, also known as Katebe Katoto and also known as Emmanuel Katto, the Seventeenth Defendant, was a close associate of Dr Chiluba and XF Chungu.|
|Belsquare Residence N.V.||Belsquare Residence N.V. is a Belgian registered company holding the properties in Brussels at Rue des Atrebans 155 and Rue d'Escadron 8-10.|
Non-Defendant Companies and Individuals
|Access Companies||Access Financial Services Limited ("AFSL") and Access Leasing Limited ("ALL") are non-bank financial services companies incorporated under the laws of Zambia. AFSL owns 99% of the shares in ALL. The directors of AFSL are Francis Kaunda (Chairman), Irene Kabwe, Aaron Chungu (Executive Director), Jean-Pierre Rozan, Swathulani Munthali and Edward Shamutete (non-executive directors). The shareholders of AFSL are Aaron Chungu (5%), Irene Kabwe (55%), Francis Kaunda (10%) and Jean-Pierre Rozan (via his companies SCMM and Comecin) (30%). Faustin Kabwe was the Chief Executive Officer. The shareholding of Aaron Chungu has been seized by the State on the grounds that the same was purchased using stolen Government monies.|
|Astra Fire||Astra Fire Systems Limited is a company incorporated in England under company number 020402399. Mr Shansonga was appointed a director of the company on 25.10.92.|
|Atlas Trading Limited||A company incorporated in England under company number 02934534. The company's directors include (from April 1998) Mohamed Iqbal Meer, members of the Shamutete family, and (between 1998 and 2002) Faustin Kabwe. Atlas Trading Ltd made payments to Meer Care which were recorded in the AFSL ledger account.|
|Bennett, Elaine||Manager of Operations at Zanaco Bank London from July 1995.|
|Cavemont||Cavemont Plc is a Zambian company associated with Cavemont Merchant Bank. AFSL held an account at Cavemont and Meer Care made payments to Cavemont and Cavemont Merchant Bank.|
|Chansongo, Esnart||Employed by AFSL between April 1996 and January 2003, executive assistant to Faustin Kabwe and Mr Aaron Chungu.|
|Chibanda, Kombe Regis||Kombe Regis Chibanda is the son of Stella Chibanda.|
|Chocoland Zambia Limited||Chocoland Zambia Ltd is a company incorporated in Zambia. The principal shareholder and managing director is XF Chungu's sister, Celestine Chungu.|
|Chungu, Celestine||Sister of XF Chungu, principal shareholder and managing director of Chocoland Zambia Ltd.|
|Chungu, Mr PR||Peter Rowland Chungu, the husband of Celestine Chungu, brother in law of XF Chungu and business partner of Faustin Kabwe in Garden Plumbers Limited.|
|Comecin||Believed to be a company incorporated in France of which Jean-Pierre Rozan is a director; made payments to the AFSL ledger account in Meer Care.|
|DGH Poly Products Limited||A Zambian company whose directors and shareholders were De Garnier Holdings (99%) and Mr Atan Shansonga (1%). De Garnier Holdings is a BVI company. The directors of DGH Polyproducts Limited were Atan Shansonga, Aaron Chungu and Sebastian Mathew. Atan Shansonga has stated in his Affidavit of Means that he is the beneficial owner of De Garnier Holdings Limited. Faustin Kabwe and Aaron Chungu have stated that DGH Polyproducts Limited was beneficially owned by XF Chungu. DGH Polyproducts Limited purchased the business and some of the assets of Polypackers Limited from the Receiver of Polypackers Limited using sums advanced by AFSL which are stolen Government monies.|
|Dulatite Properties Limited||A Zambian company established by Aaron Chungu and Faustin Kabwe and of which they were both directors and (at least initially) shareholders. The shareholdings were later transferred to Mrs I C Shamutete and Mr Chainda M Shamutete.|
|Epakor Investment SA||A company registered in Panama and owned beneficially by Francis Kaunda. Cave Malik acted on behalf of Epakor.|
|Fernhurst Holdings Limited||Cave Malik made and received payments for Fernhurst Holding through the AFSL ledger. The company appears to have been set up as a vehicle to purchase property and is believed to have been owned beneficially by XF Chungu.|
|Fountain Estates Limited||A company incorporated in Zambia of which Mr Bhupendra Bhailal Thaker, the father of Mr Bimal Thaker, was a director until 07.09.01. The company was owned in trust by Cave Malik & Co, Ndola.|
|Goldman, Mr||Stephen Goldman, a director of Wilbain.|
|Harptree Holdings||Meer Care acted on the incorporation of Harptree Holdings Limited on the apparent instructions of Mr Kabwe and maintained a ledger account for the company. F M Kabwe is a/the shareholder. The formation costs of £3,000 were paid to Meer Care out of the ledger on the Meer Care $ account entitled FM Kabwe/Commercial.|
|Hazida Motors||The company was involved in the sale and purchase of the lease and the business of Nkamba Bay Lodge in 2001 (the real estate itself being owned by Zambian Wild Life). The Task Force has seized this property.|
|Hi-Pro||Hi-Pro Limited is an English company which received a payment from Meer Care in January 1999.|
|Industrial Equipment Limited||A company registered in Zambia which made payment to the AFSL ledger in Cave Malik. The money was then transferred on to Irene Kabwe in New York on the instructions of Mr Kabwe.|
|Jaigees||Jaigees Limited is a Zambian construction company which at material times was performing work on XF Chungu's private property.|
|Kaluba, Beauty||General Manager at Zanaco Bank, London, at all material times from September 1995.|
|Kalumba, Katele||Katele Kalumba was at all material times Minister of Finance of Zambia.|
|Katumbi, Betti||Betti Katumbi is the wife of Moses Katumbi and sister in law of Raphael Soriano (a/k/a Katebe Katoto). She held an account at KBC Bank in Belgium into which the Ministry of Finance transmitted funds in excess of US$20 million.|
|Kaunda, Mr C||Chad Herbert Mwape Kaunda is the brother of Mr F Kaunda. Mr C Kaunda owned the business premises of the Access Companies in Lusaka.|
|Koshy, Thomas||A recipient of funds from AFSL ledger on Meer Care account.|
|Lonrho||Lonrho Properties Zambia Ltd.|
|Lubbock Fine||Lubbock Fine is an English firm of Chartered Accountants based in London and Jersey. It made to payments to the Zamtrop account, the Meer Care $ account and the Cave Malik $ account.|
|Lungu, John||John Lungu (now deceased) was an official in the Office of the President.|
|Mareus CC||Received payments from AFSL in connection with the Epakor loan facility.|
|Matthew, Sebastian||Assistant to Aaron Chungu at AFSL.|
|Motor City||Motor City Limited, a company incorporated in Zambia and now seized by the Task Force. The shares were held by Faustin Kabwe on trust for XF Chungu.|
|Mtonga, Mr||James Mtonga, Permanent Secretary in the Ministry of Finance.|
|Mulenga, Sinkala||Chief Accountant at the Ministry of Finance, Financial Management Division, Accountant General, in 1999 and 2000. In late 2000 he was transferred as Chief Accountant to External Resources Mobilisation, where he was signatory to ERM accounts. He authorized payments to Systems Innovation.|
|Munthali, Swathulani||A director of AFSL and of Zynex Telekom Limited.|
|Musonda, Mr||Ministry of Finance Official who authorized payments to Wilbain.|
|Musonda, Samuel||Managing Director of Zambia National Commercial Bank in Lusaka from 13.12.1996 to 19.06.2002. He is currently being prosecuted in Zambia on corruption charges.|
|Mutale, Bonaventure||Bonaventure Mutale was at all material times Attorney General of Zambia.|
|Mwale, Enock||Finance Manager (Head of Treasury) at AFSL from 1998.|
|Mwale, Mr||Mr C Z Mwale, Accountant General in the Ministry of Finance.|
|Mwanakaoma, Ms||Bridget Mwanakaoma, (deceased) former Treasury Counsel in the Ministry of Finance.|
|Mwansa, Mr||Mr J Mwansa, Deputy Director of the Budget in the Ministry of Finance.|
|Mweene, Professor||Professor Benjamin Mweene, Secretary to the Treasury in the Ministry of Finance during the presidency of Dr Chiluba between 30 May 1996 and 29 June 1999. Currently facing prosecution in Zambia for corruption offences under section 29(1) of the Anti-Corruption Commission Act No 42 of 1996 relating to the erection of a house on his property by way of reward for participation in the release of money to the Zamtrop account by the Ministry of Finance by way of "overpayments" ostensibly for making payment to Systems Innovations and Wilbain.|
|Nebraska Limited||A company incorporated in the British Virgin Islands on 05.02.99. Its company secretary was Corporate Secretaries Limited. A vehicle company set up for the purpose of receiving misappropriated government funds at the instigation of XF Chungu and with the assistance of Mr Shansonga who was its director.|
|Nkumbula, Stanley||At all material times Mr Nkumbula was the First Secretary, Protocol Department, at the Zambian High Commission in London.|
|Nonde, Mr||Boniface Nonde, a Director in the Budget Department in the Ministry of Finance.|
|Nyangulu, Mr||Darius Dustin Nyangulu, First Secretary at the Zambian High Commission in London between November 1992 and January 1996.|
|Patel, Mr BD||The Patel brothers received payments from Meer Care on instructions from Faustin Kabwe. The payments were made by separate cheques mailed to Paresh Patel's address in the UK.|
|Patel, Mr P||Paresh Patel, the Patel brothers received payments from Meer Care on instructions from Faustin Kabwe. The payments were made by separate cheques mailed to Paresh Patel's address in the UK.|
|Redcliffe||Redcliffe Limited, a company incorporated in England on 23 June 1995 under company number 3072120 at the instigation of XF Chungu. A vehicle company set up for the purpose of receiving misappropriated government funds at the instigation of XF Chungu and with the assistance of Mr Shansonga. Its offices were based in the offices of Kehimkar & Co (later Cave Malik). Valerie Edwards (a friend of Mr Shansonga) was appointed a director of Redcliffe but it was, at all material times, controlled and operated by Mr Shansonga and XF Chungu. Struck off the Companies Register on 19.08.97 pursuant to section 652(5) of the Companies Act 1985 and dissolved on 26.08.97 by notice in the Gazette.|
|River Properties Overseas Limited||A company whose registered office is at the offices of Cave Malik in North Harrow. The company secretary is Cave Malik Secretarial Ltd, the director is Cave Malik Nominees Ltd, and the share capital comprises two issued ordinary shares held by Cave Malik Nominees which were acquired on 26.10.01. Mr Kabwe has stated that AFSL acted as local representative and oversaw the management of the property owned by River Properties at No 12B Serval Road, Kabulonga, Lusaka, which is currently lived in by Dr Chiluba.|
|Sakala, Mr||Reuben Sakala, First Secretary at the Zambian High Commission in London from October 1996 and January 2000.|
|Sammanco||Sammanco International, an American company owned and managed by Mr Wills.|
|Saveco||A company of which Faustin Kabwe was a director.|
|Sham & Meer||An associated law firm of Meer Care based in South Africa.|
|Shamutete, Edward||A director of AFSL and director of ZCCM. The beneficial owner of Shengo Holdings and also believed to be the owner of Roan Investments Ltd.|
|Sharpe, Nicola||Lawyer who carried out a lot of conveyancing work for the Access companies. Married to Irene Kabwe's nephew.|
|Skyjet Travel||Skyjet Travel Limited is a Zambian company that was at material times owned by Mr Stanley Tampiyappa.|
|Southern Cross Management LLC||An entity based in New York which received a payment debited to the AFSL ledger at Meer Care on the instructions of Faustin Kabwe.|
|Syblis Limited||A Zambian company owned by Faustin Kabwe (60%) and Swathulani Munthali (40%). The company was ostensibly created to provide maintenance work for System Innovations in relation to security installations in Zambia.|
|System Innovations||Systems Innovations, Inc, a company chartered under the laws of the Commonwealth of Virginia, USA.|
|Tampiyappa, Mr||Stanley Tampiyappa, at material times owned Skyjet Travel Limited. In addition Mr Tampiyappa was a joint owner of Tedworth Properties, a Panamanian company which acquired blocks of flats in Zambia. He was a close associate of XF Chungu and Dr Chiluba. The blocks of flats purchased in the name of Tedworth Properties have been seized by the State on the grounds that they were purchased using stolen Government monies. The seizure has been challenged.|
|Task Force||The Task Force on Corruption established by the Government of the Republic of Zambia.|
|Tedworth Properties||Tedworth Properties Inc is a Panamanian company which owns properties in Zambia. The beneficial interest in Tedworth is hidden but its accounts show it to be a shell company whose main source of funds is convertible loan stock, the loan documents for which are not accountable. Faustin Kabwe has stated that the directors of Tedworth are Mr Tampiyappa and XF Chungu and that the properties are held for the Office of the President. Faustin Kabwe was appointed the chairman of local directors on Tedworth's registration as a foreign company in Zambia.|
|Villa Lux Property||Villa Lux Properties Limited, a real estate company incorporated in Zambia. The directors and shareholders of the company are Pule Mutati, Stephen NyikaMutambo and Joyce Malunga.|
|Wilbain||Wilbain Technology Inc., a company incorporated in Delaware, USA.|
|Wills, Mr||Jim Wills, Managing Director and owner of Wilbain.|
|Zamdaell Farm||Zamdaell Farm is a property in Zambia which is believed to be owned by Zamdaell Limited.|
|Zamdaell Limited||Zamdaell Ltd is a company registered in Zambia. 99% of its shares are owned by Zamdell International Ltd, a company incorporated in the British Virgin Islands. Zamdaell International Ltd was acquired by XF Chungu in about 1996 for the purpose of undertaking property investments in Zambia. 1% of the shares in Zamdaell Ltd are owned by Faustin Kabwe. The directors of Zamdaell Limited are Aaron Chungu and Faustin Kabwe.|
|Zanaco||Zambian National Commercial Bank.|
|Zarkham||Received a payment from the Harptree ledger account in Meer Care.|
|ZSIS||Zambia Security Intelligence Services, also known as Office of the President, Special Division. It is a department of the Government of Zambia which is entrusted with performing security intelligence work on behalf of the Government of Zambia.|
|Zulu, Mr||Mr Wilson Yotam Zulu, a Director of ZSIS.|
|Zynex Telekom||Zynex Telekom Limited, a Zambian company the directors of which are believed to include Faustin Kabwe, Aaron Chungu and a Mr Swathulani Munthali.|
Principal Bank accounts
|"Zamtrop account"||The US Dollar account number 58C/40/70185/01 entitled "Zamtrop" held at the London branch of the Zambian National Commercial Bank by the Zambian Government in the name of ZSIS.|
|"the Meer Care $ account"||US Dollar client account number 02/02507404 held by Meer Care at the National Westminster Bank, North Audley Street branch.|
|"the Meer Care £ account"||£ Sterling Solicitors Reserve account number 04527704 held by Meer Care at the National Westminster Bank, North Audley Street branch.|
|"the Cave Malik US$ account"||US Dollar client account number 20311-333-103743 held by Cave Malik at Habib Bank at its branch at Moorgate, London.|
|"the Cave Malik £ account"||£ Sterling account number 7-1-20311-103751 held by Cave Malik at Habib Bank at its branch at Moorgate, London.|
|"AFSL United Bank account"||AFSL's bank account numbers 200053-52 & 200053-28 at United Bank of Zambia, Lusaka|
|"the Shansonga BB account"||Mr Shansonga's bank account numbers 70-83-9809 & 70-83-9083 held at Barclays Bank, Portman Square, London.|
|"the Shansonga First Direct account"||Mr Shansonga's bank account number 21673270 held at First Direct, Millshaw Park Lane, Leeds, LS98 1FD.|
|"the Redcliffe account"||Account number 0101970179 held in the name of Redcliffe at Zanaco Bank, London. The mandate for the account provided for any two signatories to sign and identifies the signatories as Valerie P Edwards – Director; Chandrika J Patel – Secretary and Atan Shansonga – Consultant.|
|"the Nebraska account"||US$ account number 39214641 held in the name of Nebraska at HSBC Midland Bank at St Clement Danes Branch. Mr Shansonga was the sole signatory on the account.|
|"the BK bank accounts"||US$ account number 474-7401180-20 held under the name "BK" at KBC Bank, at Gistelse Steenweg, 144-Brugge-2, Belgium and US$ account no. B105064 Salomon Schweiz held at ABN-AMRO Bank Basel, Suisse|
|"Permase General"||A number of ZSIS accounts initially at Findeco later moved to Head Office at Cairo Road|
(A) INTRODUCTION SECTION
DETAILS OF DEFENDANTS
WHY THE ACTION IS BROUGHT IN LONDON
(B) ZAMBIA – SOME POINTS TO NOTE
THE ALLEGATIONS IN THEIR FINANCIAL CONTEXT
(C) PROCEDURAL MATTERS
UNUSUAL ITEMS (SOME EXAMPLES)
|Clothes (Basile)||FJT, XFC
($471,597 is unaccounted for)
|Clothes (Basile)||FJT, XFC||$180,000||CM|
|Cash||FJT||£30,000||Zamtrop (collected by BT)|
|12B Serval Road||FJT||$450,000||CM|
|Various cash payments||FJT or at his direction (annex 49) Payments to FJT's children or for education or accommodation for them||$308,255.54||Zamtrop|
|Cash||FJT (the Picture Payments) (annex 50)||$64,726.58||Zamtrop (3rd party credits)|
|Cash||Former Chief Justice Ngulube & family||$91,664.01||Zamtrop|
|Cash||Churches in America at direction of FJT||$179,000||Zamtrop|
|Cash||FJT (more details set out below)||$660,000||Standaert via Zamtrop|
|Repayment of credit card debts for personal expenditure||XFC||£341,520||AS/Redcliffe|
|Payments for school fees||XFC||£181,000||AS/Redcliffe|
|Cash||XFC (taken from Zamtrop account in person)||$371,149.80||Zamtrop|
|Cash||XFC (annex 53) (delivered by Nkumbula to XFC or wife)||$453,940||Zamtrop|
|Cash||XFC (delivered by AS)||$250,000||Zamtrop|
|Payment for spectacles 27/5/98||FJT and others||£295||AS/Redcliffe|
|Cash||Professor Loveless (spouse of Professor Mweene)||$10,000||AS/Redcliffe|
|Honda motorcycle and clothing||XFC||BF590,934||AS/Redcliffe/Standaert|
|Beauty Therapy Course||Rita Parkinson||£6,295 (plus accommodation)||AS|
|Jewellery (Fine Jewellers Washington GT34)||XFC||$30,000||Zamtrop|
|Jewellery||XFC via Barclays Premier card in name of AS 12/10/98||£1,319.71||AS|
XFC DISBURSEMENTS (SOME EXAMPLES)
|£45,000||26/06/00||Used by XFC to repay a temporary loan and payments for Beauty Kaluba and his children||Zamtrop|
|$25,000||26/06/00||Cash payment to BB Mphande||Zamtrop|
|$50,000||08/01/99||Cash payment to Moses Katumbi||Zamtrop|
|$30,000||28/03/01||Mrs C Willems (Mrs Standaert)||Zamtrop|
THE PRESIDENT'S CLOTHES
"Question: How do you explain the payments to your children and Basile Boutique?
Answer: The Controlling Officer of the account Mr Chungu is in a better position to explain
Question: Did you receive any money through the Zamtrop account in London?
Answer: Only the Controlling Officer would know"
"The Zamtrop Account as it is called in this claim, historically is an account set up by the Government of Zambia in or about 1963 for the operations of the Zambian Intelligence Services. This account was operated overseas so that in the event of internal conflict there would be an external account for use to fund operations in times of emergency. This account was also to be deployed for certain Defence and security spending of a highly classified nature. I do not accept that this account was set up for the purposes of fraud. I as the President of Zambia certainly did not authorise its use for anything else other than what it was created for. This was an account entirely under the control of the intelligence service of Zambia within the operational ambit of the Director General who enjoys wide powers and discretion under Zambian law in matters concerning national security".
(D) ZAMTROP CONSPIRACY GENERAL MATTERS
BURDEN OF PROOF
"…the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence … Ungoed-Thomas J expressed this neatly in In re Dellow's Will Trusts 1 WLR 451, 455: "The more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it"
Further I accept the principle that if explanations are put forward by Defendants (especially 3rd parties accused of assisting) a finding of liability involves rejecting those explanations as being inherently improbable see Grupo Torras SA v Al-Sabah (No 5),  EWHC 300 (Comm),  CLC 1469 at 1541 (affirmed CA  Lloyds Reports Bank 36).
"It is the Claimant's case that on a date or dates unknown to the Claimant each of the Defendants (or any two or more together) together with others as hereinafter pleaded wrongfully and with intent to injure the Claimant and/or to cause loss and damage to the Claimant by unlawful means conspired and combined together to defraud the Claimant by the fraudulent misappropriation of its monies, in breach of trust, and to conceal such fraud and the proceeds of such fraud from the Claimant. In particular, it is the Claimant's case that each of the Defendants (or any two or more together) together with others as hereinafter pleaded, conspired and combined together to misappropriate the Claimant's monies using the vehicle of the Zamtrop $ account to obtain such funds from the Zambian Ministry of Finance and/or by extension and/or variation of the said conspiracy directly from the Office of the President (being an office of the Zambian Government) and that thereafter they conspired and combined together to dispose of such misappropriated monies and to conceal such misappropriation and dissipation by various means and, in particular, by laundering a substantial part of the same through the Meer Care $ account and/or the Cave Malik $ account and/or the Shansonga BB account and/or the Redcliffe account and/or the Nebraska account ("the Zamtrop Conspiracy")."
HOW THE CONSPIRACY WORKED
EVENTS THAT ARE NOT COINCIDENTAL
AFSL OBTAINS A LICENCE
(E) OPENING OF THE ZAMTROP ACCOUNT
FORMALITIES FOR ZAMTROP ACCOUNT
"RE: (ZAMTROOP) LONDON
"Your recent audit and check carried out at the London Special Account (ZAMTROOP) will help to introduce its special feature of security which is hitherto been lacking.
"In this regard I accept your suggestion that the Special Accounts at all our Missions abroad be kept under the Finance Charter of 1970 being the most appropriate instrument applicable
FINANCE CHARTER 1970
SIGNIFICANCE OF FINANCE CHARTER
(F) CREDITS TO ZAMTROP ACCOUNT
TRANSFERS INTO AND OUT OF THE ZAMTROP ACCOUNT: SYSTEMS AND WILBAIN
|Trial bundle reference||Date||Payee||Amount / US$|
|2/21||8.1.96||System Innovations & Wilbain||798,000|
|2/26||21.6.96||System Innovations & Wilbain||825,000|
|Trial bundle reference||Date||Payee||Amount / US$|
"In the 19th century it was held that the court could not enquire into a sovereign act done within the territory of the foreign state, and this principle was expressed by the United States Supreme Court in a much quoted dictum which was in turn adopted by the Court of Appeal in England:-
"Every sovereign state is bound to respect the independence of every other sovereign state, and the courts of one country will not sit in judgment of the acts of the Government of another done within its own territory"
This principle is sometimes used on alternative ground for a result that can also be reached by the application of the ordinary rules of the conflict of laws. Thus the executive seizure of property by a foreign sovereign within its territory will not give rise to an action in torte in England either on the basis of this general principle or because the act was lawful by the law of the place when it was committed and thus afforded a Defence under the rule in Philips v Air. Nor can a former owner challenge title to property acquired from a foreign Government which has been confiscated within its own territory, again either on the basis of the general principle or on the basis of the rule that the validity confiscatory transfer of title depends on the lex situs".
"In Buttes Gas and Oil Co v Hammer (Nos 2 and 3), The House of Lords held that the act of state cases are part of a more general principle but the courts will not adjudicate on the transaction of foreign sovereign states"
"It would not be difficult to elaborate on these considerations, or to perceive other important inter-state issues and/or issues of international law which would face the court. They have only to be stated to compel the conclusion that these are not issues upon which a municipal court can pass. Leaving aside all possibility of embarrassment in our foreign relations (which it can be said not to have been drawn to the attention of the court by the executive) there are - to follow the Fifth Circuit Court of Appeals - no judicial or manageable standards by which to judge these issues, or to adopt another phrase (from a passage not quoted), the court would be in a judicial no-man's land: the court would be asked to review transactions in which four sovereign states were involved, which they had brought to a precarious settlement, after diplomacy and the use of force, and to say that at least part of these were "unlawful" under international law. I would just add, in answer to one of the respondents' arguments, that it is not to be assumed that these matters have now passed into history, so that they now can be examined with safe detachment.
"317 In our judgment, these authorities indicate that English law is seeking to balance (at least) three separate insights as to the appropriate role of national courts when faced with reliance on foreign legislative or executive acts by way of Defence to what might otherwise be a wrong for which those courts are called upon to provide a remedy.
318 First, there is the prima facie rule that a foreign sovereign is to be accorded that absolute authority which is vested in him to act within his own territory as a sovereign acts. This rule reflects concepts of both private and public international law as to territorial sovereignty. As such, we think that the rule is founded primarily on a view as to the comity of nations, rather than on concern as to giving offence to the foreign sovereign or as to the absence of judicial standards: see Buck v Attorney General  Ch 745, 770 per Diplock LJ. We say this because, if the sovereign purports to act outside his territory, or even if he acts within it in a penal or discriminatory way and a claimant then seeks to found his claim on that sovereign act, the English court arrogates to itself the right in the first case not to recognise and in the second case not to enforce it. This shows that embarrassment about sitting in judgment on the acts of a foreign sovereign is not per se the cause of judicial restraint in this context. Rather, each sovereign says to the other: "We will respect your territorial sovereignty. But there can be no offence if we do not recognise your extraterritorial or exorbitant acts."
319 The second insight, however, is that, whether the sovereign acts within his own territory or outside it, there is a certain class of sovereign act which calls for judicial restraint on the part of our municipal courts. This is the principle of non-justiciability. It is or leads to a form of immunity ratione materiae. It may not be easy to generalise about such acts, and the application of the principle may be fact sensitive. Guidance, however, is to be found in such considerations as whether there are "judicial or manageable standards" by which to resolve the dispute, whether the court would be in "a judicial no-man's land", or perhaps whether there would be embarrassment in our foreign relations, at any rate if that possibility was drawn to the court's attention by the executive. Sensitive issues involving diplomacy between states, or uncertain or controversial issues of international law, may be other examples of situations calling for judicial restraint. The distinction which has been developed in the analogous area of sovereign immunity between situations where the sovereign acts by way of sovereign authority (acta jure imperii) and where he acts in the commercial sphere (acta jure gestionis) may also be of some assistance, because with the development of the restrictive theory of sovereign immunity there has come the realisation that it is not every impleading of a sovereign that requires judicial restraint or gives rise to a legitimate fear of giving offence. In essence, the principle of non-justiciability seeks to distinguish disputes involving sovereign authority which can only be resolved on a state to state level from disputes which can be resolved by judicial means.
320 The third insight is that the rule whereby there is a principle of judicial restraint in so far as a sovereign acts within his own territory is only a prima facie rule. It is subject to certain exceptions. One exception we have already mentioned is that a penal or discriminatory act of a foreign sovereign cannot be made the basis of a claim in our courts. This is perhaps one aspect of a general exception to the effect that these courts will not recognise the act of a foreign sovereign which is contrary to English public policy. The existence of this exception is not in doubt. But how far does it extend, and what is meant by English public policy in this context? The width of the exception is uncertain both because the concept of public policy is itself not hard edged and also because it has to take into account the abhorrence of outrageous acts on the one hand and on the other hand the concerns which give rise to the first and second insights to which we have referred. This is the route by which it is possible to say that discriminatory breaches of fundamental human rights will not be recognised, even in a sphere which is as much a matter for individual sovereign choice as a person's nationality.
"In these circumstances, there was nothing precarious or delicate, and nothing subject to diplomacy, which judicial adjudication might threaten; there could be no embarrassment to diplomatic relations, no casus belli, and nothing to vex the peace of nations in judicial investigation. On the contrary, the Security Council resolutions had made clear to all its member states that they were not to recognise Iraq's attempt to annex Kuwait, that that annexation was null and void, and that Iraq bore responsibility for loss caused by its invasion. Moreover, the Berman letter provided an opportunity for the executive branch of government to make known to the judicial branch any concern it might have felt about the non-justiciability of the issues raised by KAC's claim, and to do so against the background of the speech of Lord Wilberforce in the Buttes Gas case  AC 888. In the event the letter emphasised Her Majesty's Government's commitment to its obligations under the UN Resolutions"
"24 On behalf of IAC Mr Donaldson submitted that the public policy exception to the recognition of provisions of foreign law is limited to infringements of human rights. The allegation in the present action is breach of international law by Iraq. But breach of international law by a state is not, and should not be, a ground for refusing to recognise a foreign decree. An English court will not sit in judgment on the sovereign acts of a foreign government or state. It will not adjudicate upon the legality, validity or acceptability of such acts, either under domestic law or international law. For a court to do so would offend against the principle that the courts will not adjudicate upon the transactions of foreign sovereign states. This principle is not discretionary. It is inherent in the very nature of the judicial process: see Buttes Gas and Oil Co v Hammer (No 3)  AC 888, 932. KAC's argument, this submission by IAC continued, invites the court to determine whether the invasion of Kuwait by Iraq, followed by the removal of the ten aircraft from Kuwait to Iraq and their transfer to IAC, was unlawful under international law. The courts below were wrong to accede to this invitation.
25 My Lords, this submission seeks to press the non-justiciability principle too far. Undoubtedly there may be cases, of which the Buttes case is an illustration, where the issues are such that the court has, in the words of Lord Wilberforce, at p 938, "no judicial or manageable standards by which to judge [the] issues":
"the court would be asked to review transactions in which four sovereign states were involved, which they had brought to a precarious settlement, after diplomacy and the use of force, and to say that at least part of these were 'unlawful' under international law."
This was Lord Wilberforce's conclusion regarding the important inter-state and other issues arising in that case: see his summary, at p 937.
26 This is not to say an English court is disabled from ever taking cognisance of international law or from ever considering whether a violation of international law has occurred. In appropriate circumstances it is legitimate for an English court to have regard to the content of international law in deciding whether to recognise a foreign law. Lord Wilberforce himself accepted this in the Buttes case, at p 931D. Nor does the "non-justiciable" principle mean that the judiciary must shut their eyes to a breach of an established principle of international law committed by one state against another when the breach is plain and, indeed, acknowledged. In such a case the adjudication problems confronting the English court in the Buttes litigation do not arise. The standard being applied by the court is clear and manageable, and the outcome not in doubt. That is the present case.
27 Against this background I return to the question whether as a matter of public policy an English court ought to decline to recognise RCC Resolution 369 as effectual to divest KAC of its title to its aircraft. Mance J and the Court of Appeal said that an English court should so decline. I agree with them.
"The second ground for the Court of Appeal's decision on Resolution 369, although not directly supported by any earlier precedent, is much stronger. It invoked public policy as a justification for not applying otherwise applicable principles of private international law. The foundation of it is that the annexation of Kuwait, and Resolution 369, was a flagrant breach of international law. If any proof was required, the Security Council Resolutions establish this fact beyond doubt. In any event, the Iraqi state unequivocally accepted that in annexing Kuwait and passing Resolution 369 it had acted in breach of international law. This is the context against which IAC argued, relying on Buttes Gas and Oil Co v Hammer (No 3)  AC 888, that "the issues" are not justiciable. Counsel for IAC relied on what he described as an absolute rule in the Buttes case that courts in England will not adjudicate upon acts done abroad by virtue of sovereign authority: p 932E-F, per Lord Wilberforce. For my part this is too austere and unworkable an interpretation of the Buttes case. There were rival claims by rulers to part of the continental shelf and there was a dispute about the motives of a foreign ruler: p 937C-H. Lord Wilberforce found that there were "no judicial or manageable standards by which to judge these issues" and "the court would be in a judicial no-man's land": p 938B. He added "it is not to be assumed that these matters have now passed into history, so that they now can be examined with safe detachment": at p 938C. Buttes was an unusual case decided on a striking out application and without the benefit of a Foreign Office certificate. But reading Lord Wilberforce's judgment as a whole I have no doubt that counsel for IAC is wrong in seeking to derive from it the categorical rule put forward. In any event, in the present case there is no difficulty in adjudicating on Iraq's gross breaches of international law. There is no relevant issue: Iraq accepted the illegality of the annexation and of Resolution 369. In agreement with the Court of Appeal I would reject the argument based on non-justiciability."
135 Important questions of principle are raised by the highly unusual facts of this case. There is no doubt as to the general effect of the rule which is known as the act of state rule. It applies to the legislative or other governmental acts of a recognised foreign state or government within the limits of its own territory. The English courts will not adjudicate upon, or call into question, any such acts. They may be pleaded and relied upon by way of Defence in this jurisdiction without being subjected to that kind of judicial scrutiny. The rule gives effect to a policy of "judicial restraint or abstention": see Buttes Gas and Oil Co v Hammer (No 3)  AC 888, 931F-934C per Lord Wilberforce. As the title to moveable property is determined by the lex situs, a transfer of property effected by or under foreign legislation in the country where the property is situated will, as a general rule, be treated as effective by English law for all relevant purposes.
136 It would clearly be possible for a "blue pencil" approach to be taken to Resolution 369, by reading it down so that it applied only to the property of KAC that was situated at the time of the resolution within its own territory. The normal rule is that legislative action applied to property within the territorial jurisdiction will be internationally recognised, despite the fact that it has been combined with action which is unenforceable extraterritorially. If this approach is adopted, that part of Resolution 369 which vested title in the aircraft in IAC will provide IAC with a complete Defence to this action. Its legality in international law will not be justiciable in these proceedings.
137 IAC accepts however that the normal rule is subject to an exception on grounds of public policy. The proposition which it accepts is that the exception applies if the foreign legislation constitutes so grave an infringement of human rights that the courts of this country ought to refuse to recognise the legislation as a law at all: Oppenheimer v Cattermole  AC 249, 278, per Lord Cross of Chelsea. The proposition which it disputes is that the public policy exception extends to breaches of international law. IAC's argument is presented as one of principle. Arguments directed to breaches of international law are non-justiciable. The public policy exception must be tightly restricted. The only exception that has been judicially recognised is the human rights exception. As that exception is not invoked in this case, it has a complete Defence to these proceedings under the act of state rule.
138 It is clear that very narrow limits must be placed on any exception to the act of state rule. As Lord Cross recognised in Oppenheimer v Cattermole  AC 249, 277-278, a judge should be slow to refuse to give effect to the legislation of a foreign state in any sphere in which, according to accepted principles of international law, the foreign state has jurisdiction. Among these accepted principles is that which is founded on the comity of nations. This principle normally requires our courts to recognise the jurisdiction of the foreign state over all assets situated within its own territories: see Lord Salmon, at p 282. A judge should be slow to depart from these principles. He may have an inadequate understanding of the circumstances in which the legislation was passed. His refusal to recognise it may be embarrassing to the executive, whose function is so far as possible to maintain friendly relations with foreign states".
"It is not open to the court to go behind what has been enacted by the legislature, and to enquire how the enactment came to be made, whether it arose out of incorrect information or, indeed, by actual deception by someone on whom reliance was placed by it. The court must accept the enactment as the law unless and until the legislature itself alters such enactment, on being persuaded of its error".
FURTHER TRANSFERS OUT OF THE ZAMTROP ACCOUNT
|Meer Care & Desai||7,422,489||-|
|Nebraska Services Ltd||99,990||-|
|MISSL Associates Ltd||-||-|
|Hearnville Estates Ltd||-||-|
|Belsquare Residence NV||-||-|
GT altered those figures for MCD, CM and AS in the light of further questions put to Miss Pincott. The revised figures are $7,021,020.17 (MCD), $2,127,822 (CM) and $1,415,762 (AS).
(G) EVENTS LEADING TO DISCOVERY
OPEN PANDORA'S BOX AND TAKE THE MONEY
FJT'S PRESIDENCY ENDS
(H) CRITICISMS OF AGZ'S EVIDENCE
ALLEGATIONS MADE ABOUT VERACITY OF THIRD PARTIES
(I) ZAMTROP ACCOUNT MONIES ARE GOVERNMENT MONIES
(1) The Wilbain transfers of $643,966.
(2) The Office of the President transfers of $743,819.
(3) The Citibank transfers totalling $1,230,000.
The latter transfers are significant because they were used to fund a cash sum of $250,000 paid to AS on 30th January 1997, a cash payment of $200,000 to Mr Zulu and $500,000 paid to MCD on 3rd March 1997.
(4) The MCD transfer of $323,968. Of that $99,968 were used to fund the payment to Basile. The bulk of the balance was used to restore the Zamtrop account from its overdrawn level of $270,947.
(5) The CM transfer of $449,995.
(6) The Lubbock Fine transfers of $599,982.
PURPOSES FOR WHICH PAYMENTS USED
"it is always open to a court, even after the kind of prolonged inquiry with a mass of expert evidence which took place in this case, to conclude, at the end of the day, that the proximate cause of the ship's loss, even on a balance of probabilities, remains in doubt, with the consequence that the ship-owners have failed to discharge the burden of proof which lay upon them" (Rhesa Shipping Co S.A. v Edmunds  1 WLR 948 at 951 see per Lord Brandon)
(J) ACCESS FINANCIAL SERVICES LIMITED (AFSL)
(K) LEGAL ISSUES
"106. The judge held that all three defendants were liable for the tort of conspiracy to injure by unlawful means. He held that under English law they were parties to a single actionable conspiracy wrongly to misappropriate the claimants' assets and that the damage caused by that conspiracy extended to the whole of the losses suffered by the claimants, save that Captain Stafford was not liable for the losses before September 1986 because he did not join the conspiracy until then. Mr Brodie submitted that the judge made a number of errors in his approach to the principles governing the tort of conspiracy to injure. He accepted that the tort of conspiracy is known to English law, but submitted that it was subject to important limitations.
107. It is common ground that there are two types of actionable conspiracy, conspiracy to injure by lawful means and conspiracy to injure by unlawful means. The first is sometimes described simply as a conspiracy to injure and the second as a conspiracy to use unlawful means (see eg Clerk and Lindsell on Torts (17th edn, 1995) pp 1267–1268, paras 23–76). In our view they are both conspiracies to injure and their ingredients are the same, with one crucial difference. In both cases there must be conspiracy to injure the claimant, but in the first case (in which the means employed would otherwise be lawful) the predominant purpose of the conspiracy must be to injure the claimant whereas in the second case, although the defendant must intend to injure the claimant, injury to the claimant need not be his predominant purpose.
108. We shall treat them as different torts, although, as it seems to us, they are better regarded as species of the same tort. It matters not. For present purposes we would define them as follows. (1) A conspiracy to injure by lawful means is actionable where the claimant proves that he has suffered loss or damage as a result of action taken pursuant to a combination or agreement between the defendant and another person or persons to injure him, where the predominant purpose of the defendant is to injure the claimant. (2) A conspiracy to injure by unlawful means is actionable where the claimant proves that he has suffered loss or damage as a result of unlawful action taken pursuant to a combination or agreement between the defendant and another person or persons to injure him by unlawful means, whether or not it is the predominant purpose of the defendant to do so. We shall call them a 'lawful means conspiracy' and an 'unlawful means conspiracy' respectively.
109. Those principles seem to us to be consistent with the authorities, including in particular Lonrho Ltd v Shell Petroleum Co Ltd (No 2)  2 All ER 456,  AC 173 and Lonrho plc v Fayed  3 All ER 303,  1 AC 448, which analyse the leading cases. (See also for example Rookes v Barnard  1 All ER 367 at 400,  AC 1129 at 1209 where Lord Devlin drew a clear distinction between the two types of conspiracy.)
110. It is important to note that the tort of conspiracy to injure by unlawful means is different in significant respects both from the crime of conspiracy and from the law of contract. A criminal conspiracy is in essence an agreement to commit a crime and, as such, is complete when the agreement is made, whether or not it is carried out. For this reason care must be taken in considering decisions in criminal cases where (as here) the question is whether the tort of conspiracy was committed. Lord Diplock put it in this way in the Shell Petroleum case:
'Regarded as a civil tort, however, conspiracy is a highly anomalous cause of action. The gist of the cause of action is damage to the plaintiff; so long as it remains unexecuted, the agreement, which alone constitutes the crime of conspiracy, causes no damage; it is only acts done in execution of the agreement that are capable of doing that. So the tort, unlike the crime, consists not of agreement but of concerted action taken pursuant to agreement.' (See  2 All ER 456 at 463,  AC 173 at 188.)
In that passage Lord Diplock appears to have been referring to both types of conspiracy. The essence of the unlawful means conspiracy is injury to the claimant as a result of an unlawful act or acts where two or more people have combined to cause the injury. It is not necessary that every overt act is done by every conspirator, but the act must be done pursuant to the conspiracy or combination.
111. A further feature of the tort of conspiracy, which is also found in criminal conspiracies, is that, as the judge pointed out (at p 124), it is not necessary to show that there is anything in the nature of an express agreement, whether formal or informal. It is sufficient if two or more persons combine with a common intention, or, in other words, that they deliberately combine, albeit tacitly, to achieve a common end. Although civil and criminal conspiracies have important differences, we agree with the judge that the following passage from the judgment of the Court of Appeal Criminal Division delivered by O'Connor LJ in R v Siracusa (1990) 90 Cr App R 340 at 349 is of assistance in this context:
'Secondly, the origins of all conspiracies are concealed and it is usually quite impossible to establish when or where the initial agreement was made, or when or where other conspirators were recruited. The very existence of the agreement can only be inferred from overt acts. Participation in a conspiracy is infinitely variable: it can be active or passive. If the majority shareholder and director of a company consents to the company being used for drug smuggling carried out in the company's name by a fellow director and minority shareholder, he is guilty of conspiracy. Consent, that is agreement or adherence to the agreement, can be inferred if it is proved that he knew what was going on and the intention to participate in the furtherance of the criminal purpose is also established by his failure to stop the unlawful activity.'
Thus it is not necessary for the conspirators all to join the conspiracy at the same time, but we agree with the judge that the parties to it must be sufficiently aware of the surrounding circumstances and share the same object for it properly to be said that they were acting in concert at the time of the acts complained of. In a criminal case juries are often asked to decide whether the alleged conspirators were 'in it together'. That may be a helpful question to ask, but we agree with Mr Brodie that it should not be used as a method of avoiding detailed consideration of the acts which are said to have been done in pursuance of the conspiracy.
112. In most cases it will be necessary to scrutinise the acts relied upon in order to see what inferences can be drawn as to the existence or otherwise of the alleged conspiracy or combination. It will be the rare case in which there will be evidence of the agreement itself. Curiously this is such a case, although it appears to us that in crucial respects it is also necessary to draw inferences as to the extent of the agreement from what happened after it. Thus the essential nature of the agreement can be seen in part from the evidence of Mr Al Bader and Captain Stafford, although, especially in the case of Captain Stafford, the extent of the agreement will depend upon inferences to be drawn both from the surrounding circumstances and subsequent events."
(1) Each conspirator was a party to the alleged combination or common design.
(2) Unlawful means were used.
(3) There was an intention to injure but that need not be the dominant purpose.
(4) It is not necessary to show that there is anything in the nature of an express agreement whether formal or informal. It is sufficient if two or more persons combine with a common intention albeit tacitly to achieve a common end.
(5) It is usually quite impossible to establish when or where there was an initial agreement and when or where other conspirators were recruited.
(6) Participation in a conspiracy is infinitely variable:- it can be active or passive. Also consent can be inferred if it is proved that a person knew what was going on and thus the intention to participate in the furtherance of the criminal purpose is also established by his failure to stop the unlawful activity. I observe that in my view that is particularly important as regards MCD, CM, AS.
(7) Scrutiny of all acts relied upon in order to see what inference can be drawn is essential. I have already emphasised in this judgment of the need to consider the actions of all the Defendants separately in the light of their knowledge and be wary of applying hindsight.
"In the case of most conspiracies to injure by tortious means it will be clear from the acts of the conspirators that they must have intended to injure the Claimant. In the case of a conspiracy to defraud by wholesale misappropriation it would be absurd to argue that the conspirators did not intend just that".
"On the Judge's findings of fact the Defendants' principal purpose was no doubt to line their own pockets, but they cannot be heard to say that they did not intend to injure the Claimants or that their acts were not aimed at the Claimants".
"132. For these reasons we reject the submission that the claimants were not entitled to claim damages for conspiracy, but we stress that that does not mean that their case must not be properly proved. That involves proving each of the elements in the tort, including the nature of the agreement, the unlawful means alleged, each unlawful act relied upon as causing loss and the fact that each such "
 2 All ER (Comm) 271 at 320
act was carried out pursuant to the conspiracy. The authorities show that the claimants must indeed prove those facts (see eg Bird v O'Neal  3 All ER 254,  AC 907 and Huntley v Thornton  1 All ER 234,  1 WLR 321). In the former case Lord Tucker said that the defendants might have been held liable—
'by looking to see what part, if any, each appellant had played in connexion with each specific incident when threats or intimidation had been used and then considering whether such part necessarily compelled the inference that the particular respondent was party to a conspiracy to use unlawful means to further the object of the picketing and thereby create a nuisance.' (See  3 All ER 254 at 260,  AC 907 at 920–921.)
In Huntley v Thornton Harman J said:
'No doubt it is not necessary that all the conspirators should join at the same time, but it is, I think, necessary that they should know all the facts and entertain the same object.' (See  1 All ER 234 at 251,  1 WLR 321 at 343.)
133. It does not follow from the above that each defendant must personally take part in every act so long as it is done pursuant to the agreement. Moore-Bick J put the matter in this way (at p 126):
'Of course, as in any case of this kind, it is necessary to examine the evidence with care to see whether each defendant was involved in each fraudulent transaction, but once one reaches the conclusion that the defendants combined to steal from their employer by whatever means might present themselves, the question in relation to any particular scheme or enterprise in which only one or some of them can be shown to have directly participated is whether that enterprise fell within the overall scope of their common design. If several people agree to enable each other to steal from their employer, lending their support in different ways at different times and taking different shares of the proceeds (or even each retaining for himself what he takes), each of them is party to the agreement pursuant to which all the thefts take place. In those circumstances there is in my judgment no need for each to be fully aware of the circumstances of each theft in order for him to be liable as a conspirator provided that the theft in question falls within the scope of their agreement.'
We agree with those conclusions but stress the need for proof to the relevant standard at every stage.
136. The judge approached the matter correctly in principle. He considered what agreement was made at the outset, partly by reference to the evidence about what was said at the time and partly by inference from what happened thereafter. He then asked himself whether each of the transactions which made up the four schemes was carried out pursuant to the conspiracy and concluded that the defendants were all parties to a single actionable conspiracy. He then considered whether Captain Stafford at any stage left the conspiracy. In our judgment that was the correct approach, although (as explained below) we have reached the conclusion that in one important respect the judge did not correctly identify the true nature of the conspiracy and that the question whether Captain Stafford left the conspiracy did not have to be considered. We do not consider that there was any unfairness in the way that the judge approached the case or, indeed, in the way in which it was advanced at the trial. The defendants had no doubt at each stage what case they had to meet.
"147. He considered the principles relevant to withdrawal from a conspiracy of this kind (at pp 136–139) and then concluded that Captain Stafford had not effectively withdrawn in these terms (at pp 139–140):"
'There is no evidence that Captain Stafford received any money after he left Kuwait other than the sum of $US25,000 which he was paid for the assistance he gave to KOTC at the time of the Iraqi invasion, but he has continued to maintain close links with Mr Al Bader who has funded his Defence to this action and it would hardly be surprising if someone with as much knowledge as he had of a dishonest conspiracy continued to receive some benefits from it. The evidence does not enable me to make a finding that he has done so, but equally, I am unable to go so far as to make a positive finding that he has not. The frauds based on falsified Brown & Root invoices continued for a few months after his departure, but they were merely a continuation of a method which had already been in use for a year and did not involve any departure from the plan as it had by then developed. The main frauds which occurred after his absence involved the purchases of additional second-hand tankers and the four new buildings (scheme II) and the diversion of the war risk premium rebates to Clarksons (scheme III). All
 2 All ER (Comm) 271 at 326
those frauds were within the contemplation of the original conspiracy, but even if there were any doubt about that, they were certainly within the contemplation of the conspiracy as it had developed by September 1989. It is not necessary for Captain Stafford to have taken an active role in order for him to have remained a party to the conspiracy, much less for him to remain liable for the loss which the plaintiffs have suffered as a result of its continuing implementation by Mr Al Bader and Mr Qabazard. It is sufficient that he should have continued to play a part by keeping silent and later by helping to protect Mr Al Bader and Mr Qabazard when Mr Al Roumi's investigations began, despite the fact that he had the means to disclose both the existence of the conspiracy and much of what had been done pursuant to it. For these reasons I have reached the conclusion that Captain Stafford did not effectively withdraw from the conspiracy when he retired to Australia. His active participation between September 1986 and September 1989 together with his subsequent silence remained as one of the effective causes of the loss which the plaintiffs suffered as a result of its continued implementation by Mr Al Bader and Mr Qabazard.'
148. It is plain from that passage that the judge held that Captain Stafford was liable after he left Kuwait because he had not withdrawn from the conspiracy. It follows that his liability in this regard depended crucially upon the finding that the agreement or conspiracy was to defraud the claimants whenever the opportunity arose. Thus, however long into the future a particular defendant committed an act defrauding the claimants, all the defendants were liable for the loss sustained as a result because the act was committed pursuant to the conspiracy. We have reached the conclusion that this part of the judge's reasoning cannot be supported. In our judgment, neither the evidence of the agreement in September 1986 (or indeed in December 1985) nor the inferences which could properly be drawn from subsequent events justified the conclusion that Captain Stafford agreed that he would continue to take any part in the conspiracy after he had left Kuwait and the employment of KOTC.
154. In these circumstances we have reached the conclusion that none of the facts relied on by Mr Malins supports the conclusion that Captain Stafford ever agreed to help in defrauding the claimants after he left Kuwait. We do not think that silence or subsequent cover-up rendered him liable as a conspirator in the absence of evidence that he either played a part in, or received the proceeds of, any later acts of misappropriation on the part of Mr Al Bader or Mr Qabazard. The conclusions reached by the judge in the passage quoted in para 147 show that there was no such evidence."
155. It follows that we need not concern ourselves further with a general consideration of the doctrine of 'withdrawal' from a common enterprise which has given rise to difficulty in the field of criminal law and does not readily
 2 All ER (Comm) 271 at 328
transpose into the field of civil actions for conspiracy. It also follows that Captain Stafford's appeal must be allowed in part unless there is new evidence sufficient to support the judge's conclusion that he should be liable in respect of losses sustained by the claimants after he left Kuwait. Mr Malins submitted that there is such evidence, to which we now turn".
"In my judgment, no honest lawyer would have implemented the instructions which Mr Folchi recounts in this transaction unquestioningly and uncomprehendingly in the manner which Mr Folchi did. There can be no question about Mr Folchi's competence. An honest lawyer in his position would, to safeguard himself and his clients, have insisted on obtaining a proper understanding and assurances regarding the situation (quite possibly in writing despite the supposed confidentiality of what was occurring). If his clients would not give him this, he would have refused to become involved. I do not on the material before me conclude that Mr Folchi became knowingly party to the scheme to injure GT or THL. But I do conclude that Mr Folchi received and complied with instructions which conflicted, on their face and in the most obvious way, with the most fundamental of fiduciary duties, to keep private and corporate affairs and monies separate. Despite any confidence Mr Folchi may have had in his clients and the distinction of the officers whose accounts were in question and despite the prevalence of complementary payments, I cannot view it as honest conduct for any lawyer to facilitate indirect payments from one's client company's accounts to unknown accounts in the names of the client company's directors, without any clear understanding why this should be necessary or appropriate. Any other conclusion would be an invitation to fraud. Directors of previously impeccable reputation can succumb to the temptations of their stewardship. Any lawyer in Mr Folchi's position must be taken to be aware of this risk, and I have no doubt that Mr Folchi was as aware of it."
BREACH OF FIDUCIARY DUTY
"In Barlow Clowes, Lord Hoffmann explained that the majority in Twinsectra considered that a solicitor in those circumstances who had failed to appreciate that the undertaking had given rise to a trust had nevertheless complied with objective honesty standards, while Lord Millett considered that the solicitor had been objectively dishonest not withstanding the failure to realise the legal implications of the transaction. If that is right, it was unsporting of the majority to have let Lord Millett waste so many pages arguing against a straw man"
"(A trustee's responsibility) may no doubt be extended in equity to others who are not properly trustees, if they are…actually participating in any fraudulent conduct of the trustee to the injury of the cestui que trust. But …. Strangers are not to be made constructive trustees merely because they act as the agents of trustees in transactions within their legal powers, transactions, perhaps of which a court of equity may disapprove, unless those agents receive and become chargeable with some part of the trust property, or unless they assist with knowledge in a dishonest and fraudulent design on the part of the trustees."
"A liability in equity to make good resulting loss attaches to person who dishonestly procures or assists in a breach of trust or fiduciary obligation. It is not necessary that, in addition, the trustee or fiduciary was acting dishonestly, although this will usually be the case where the third party who is assisting him is acting dishonestly"  2 AC 378, 392.
"This is an objective standard. At first sight this may seem surprising. Honesty has a connotation of subjectivity, as distinct from the objectivity of negligence. Honesty, indeed, does have a strong subjective element in that it is a description of a type of conduct assessed in the light of what a person actually knew at the time, as distinct from what a reasonable person would have known or appreciated. Further, honesty and its counterpart dishonesty are mostly concerned with advertent conduct, not inadvertent conduct. Carelessness is not dishonesty. Thus for the most part dishonesty is to be equated with conscious impropriety."
However, these subjective characteristics of honesty do not mean that individuals are free to set their own standards of honesty in particular circumstances. The standard of what constitutes honest conduct is not subjective. Honesty is not an optional scale, with higher or lower values according to the moral standards of each individual. If a person knowingly appropriates another's property, he will not escape a finding of dishonesty simply because he sees nothing wrong in such behaviour.
In most situations there is little difficulty in identifying how an honest person would behave. Honest people do not intentionally deceive others to their detriment. Honest people do not knowingly take others' property. Unless there is a very good and compelling reason, an honest person does not participate in a transaction if he knows it involves a misapplication of trust assets to the detriment of the beneficiaries. Nor does an honest person in such a case deliberately close his eyes and ears, or deliberately not ask questions, lest he learn something he would rather not know, and then proceed regardless. However, in the situations now under consideration the position is not always so straightforward. This can best be illustrated by considering one particular area: the taking of risks."
"In my opinion Lord Nicholls was adopting an objective standard of dishonesty by which the Defendant is expected to obtain the standard which would be observed by an honest person placed in similar circumstances. Account must be taken of subjective considerations such as the Defendant's experience and intelligence and his actual state of knowledge at the relevant time. But it is not necessary that he should actually have appreciated that he was acting dishonestly; it is sufficient that he was".
That seems to me to be right because otherwise one allows a party to set his own test for dishonesty.
"… the simple fact of it seems to be that those who thought that the majority in Twinsectra interpreted the test for dishonesty as a combined test, had misunderstood the majority's decision. It might equally be said that the majority and minority in Twinsectra had also misunderstood what each other meant:- Lord Hutton and Lord Hoffmann misunderstood what Lord Millett held and vice versa. Everyone agreed that the test was an objective one i.e. the test did not require any inquiry into the Defendant's subjective assessment of standards of honesty".
I agree with his conclusions "the test is an objective one, but an objective one which takes account of the individuals in questions characteristics". I agree (as he really said) it is not appropriate to draw analogies with other areas. He went on to say "it is a test which requires a court to assess an individual's conduct according to an objective standard of dishonesty. In doing so, the court has to take account as to what the individual knew; his experience, intelligence and reasons for acting as he did. Whether the individual was aware that his conduct fell below the objective standard is not part of the test".
"i) A dishonest state of mind on the part of the person assisting is required in the sense that that person's knowledge of the relevant transaction had to be such as to render his participation contrary to normally acceptable standards of honest conduct.
ii) Such a state of mind may involve knowledge that the transaction is one in which he cannot honestly participate (eg a misappropriation of other people's money), or it may involve suspicions combined with a conscious decision not to make enquiries which might result in knowledge.
iii) It is not necessary for the Claimants to show that the person assisting knew of the existence of a trust or fiduciary relationship between the Claimants and the First to Third Defendants and/or the Claimants' monies to Trusty International via the [Bank] involved a breach of that trust or fiduciary relationship."
" First, that a Defendant had the requisite knowledge; secondly, that, given that knowledge, the Defendant acts in a way which is contrary to normally acceptable standards of honest conduct (the objective test of honesty or dishonesty); and thirdly, possibly, that the Defendant must in some sense be dishonest himself (a subjective test of dishonesty) which might, on analysis, add little or nothing to knowledge of the facts which, objectively, would make his conduct dishonest."
"(1) It is for the court to determine what are the normally acceptable standards of honest conduct.
(2) The fact that a Defendant genuinely believes that he has not fallen below the normally acceptable standards of honest conduct is irrelevant"
That decision did not have the benefit of the Court of Appeal's observations in Abacha. I note that Abacha was delivered on the first day of the hearing of the case before Kitchin J.
"32.(1)… Where in the case of any action for which a period of limitation is prescribed by this Act, either –
"(a) the action is based upon the fraud of the Defendant; or (b) any relevant fact to the Plaintiff's right of action has been deliberately concealed from him by the Defendant;…
the period of limitation shall not begin to run until the Plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it."
"References in this subsection to the Defendant include references to the Defendant's agent and to any person through whom the Defendant claims and his agent."
"(2) For the purpose of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty".
(1) Is AGZ's claim based on fraud?
(2) Has the cause of action been deliberately concealed?
(3) When did the Republic discover it?
(4) Could the Republic have discovered it earlier than the date they rely on (January 2002) with reasonable diligence?
"I only wish to add that I would not adopt Crane J's suggested amendment of what Millett LJ said in [Paragon]…[He] may possibly have overlooked that Millett J's observation about exceptional circumstances was, in substance, a double negative. Whether that is the correct explanation or not, I would not agree with what Crane J said". Aldous LJ agreed.
"…It is inherent in Section 32 (1) of the 1980 Act, particularly considering the way Millett LJ expressed himself in [Paragon] that there must be an assumption that the Claimant desires to discover whether or not there has been a fraud…..further, the concept of "reasonable diligence" carries with it, as the Judge said, the notion of a desire to know, and, indeed, to investigate"
I observe that Neuberger LJ's judgment was a dissenting judgment. Kay and Carnworth LJ decided the case on the basis that no limitation issue arose.
"I accept that one must be very careful about implying words into a statutory provision, and it can be said that the Judge's first step involves doing just that. However, it appears to me that the Judge was not seeking to imply words, for a new concept, into the statutory provision. He was explaining what was involved in the process of deciding whether a Claimant could, with reasonable diligence, have discovered the fraud which it now seeks to plead"
"[commenting on Millett LJ's observations in Paragon] With respect, it appears to me that the word "exceptional" should be omitted: it raises the standard too high, as both Counsel now agree. Otherwise these were remarks, although made obiter are of great assistance"
(L) INDIVIDUAL DEFENDANTS: VARIOUS ISSUES
(1) All the main actors appear at the outset namely April – October 1995.
(2) Cover was provided for the operation in terms of the Wilbain/Systems memorandum of 6th June 1995 and the blanket of security. It gave an apparent contractual justification for making payments but discouraged challenge and/or investigation under the cloak of ZSIS security.
(3) All Defendants (save BT) accept that they were aware they were dealing with Government money.
(4) A means of obtaining Government authority for the payment of funds in the terms of Mr Penza's consent was secured.
(5) A relationship was formed between XFC and the newly established AFSL.
(6) The Zamtrop account was reconstituted to receive large sums of money and effectively operated under the sole control of XFC. That account was largely fed by MOF money and SC ensured there was no serious investigation as to the justification for payments into that account.
(7) The account was placed by the President under the Finance Charter which limited security scrutiny to himself, XFC and Mr Siame the Auditor General. He was completely passive.
(8) AS and the two solicitors were recruited in order to disguise the source of the money.
XAVIER F CHUNGU (XFC) (D4)
DR CHILUBA (FJT) (D3)
STELLA MUMBA CHIBANDA (SC) (D6)
FAUSTIN KABWE (FK) (D9)
AARON CHUNGU (AC) (D7)
FRANCIS KAUNDA (FRANCIS K) (D11)
"[for the purpose of establishing liability for knowing receipt] the Plaintiff must show, first a disposal of his assets in breach of fiduciary duty; secondly, the beneficial receipt by the Defendant of assets which are traceable as representing the assets of the Plaintiff; and thirdly knowledge on the part of the Defendant that the assets are traceable to a breach of fiduciary duty".
IRENE KABWE (IK) (D10)
BOUTIQUE BASILE (BASILE) (D12)
IQBAL MEER, NAYNESH DESAI AND MEER CARE & DESAI (IM, ND & MCD) (D1)
CHURCHILL HOTEL AGREEMENT
(1) XFC asked him to act for AFSL who would be performing various services for ZSIS in the receipt and disbursement of Government monies.
(2) He assumed involvement of MCD was required for reasons of discretion in the conduct of the affairs of ZSIS although he does not suggest he was given any explanation for using MCD.
(3) He agreed to assist AFSL (and thus the Republic he believed) in the receipt and disbursement of these monies.
(1) He kept no record of the meeting despite its importance and despite the obvious need to protect himself.
(2) There was no correspondence or letter of instruction from XFC or FK. It could be said that that was because of the secrecy but I do not accept that. There is no reason why there cannot be written communications without going into the detail but which confirm the position.
(3) IM concealed the Churchill Hotel Agreement from ND.
(4) He never questioned FK's instructions as to how the money was disbursed and does not assert that any of the disbursements had any underlying legal purpose (save the Jarban acquisitions) and even then the acquisition was suspicious in the manner it was carried out.
(5) He never asked why any particular transfer was being effected.
(6) He never explained with any specificity when ND was asked to sign authorisations what the purpose of the transactions were.
I shall arrive in London on December 7th, 1995 and plan to leave for Harare on the evening of the 8th. I hope you will be in London at the time so we can meet".
HARPTREE HOLDINGS LTD
FURTHER EVIDENCE OF DISHONESTY
"have advised [CM] that Harptree is our client and not Access and we will act on the instructions of FK who is authorised on behalf of Harptree and will act in accordance with his instructions dated 15th October 2002".
BLUE CARD WARNINGS
"In these circumstances, Mr D'Cruz submitted that to describe Mr Faronbi's laxity in opening the Trusty International account or permitting its early operation merely as inefficiency or oversight was simply to fly in the face of the suspicions entertained by Mr Faronbi as to the essential honesty of Messrs Ibrahim and Saminu at the time.
In my judgment, these are powerful submissions. It seems to me that once Mr Faronbi suspected Trusty International's directors of participating in money laundering, on the basis of the judge's clear findings of what Mr Faronbi was aware of, the distinction which the judge then drew between Mr Faronbi's suspicions of the business in general and his ignorance about the particular transactions in question in this case becomes a thin line whose value for the purposes of insulating Mr Faronbi and thus the Bank from the necessary complicity is highly uncertain. It is one thing to be negligent in failing to spot a possible money launderer, providing the negligence does not extend to shutting one's eyes to the truth. It is another thing, however, to have good grounds for suspecting money laundering and then to proceed as though one did not. Money laundering is a serious crime, for the very reason that ex hypothesi its subject matter is the proceeds of crime. It is true that such proceeds are not necessarily those of a breach of trust – they could be the proceeds of drug dealing. But I am doubtful that that possibility provides any protection where there is a breach of trust. It is also true that the growing concern now experienced about money laundering and the international precautions now taken against it must be viewed in the context of public policy rather than on the level of an equitable tort designed to provide remedies in the civil law against knowing assistance in breach of trust. Nevertheless, I do not see why a bank which has, through its managers, a clear suspicion that a prospective client indulges in money laundering, can be said to lack that knowledge which is the first element in the tort".
(1) Unusual settlement requests. A solicitor was urged to be careful about payments by third party, cheque or money transfer.
(2) Unusual instructions. Solicitors were urged to take care in dealing with a client who has no discernable reason for using the firm's service e.g. clients with distant addresses who could find the same service nearer their home base.
(3) Large sums of cash. Solicitors were urged to be cautious when requested to hold large amounts of cash in their client account either pending further instruction from the client or for no other purpose than for onward transmission to a third party.
(4) The secretive client. A person or client is reluctant to provide details of his identity should be carefully considered.
NAYNESH DESAI (ND)
"The ledger account is entitled "Systems Innovations Inc/General" although the hard copy file is entitled "Systems Innovations Inc re General/Access" it was of course AFSL and not Systems Innovations that was my client, and the title of both the hard copy file and the ledger account is somewhat misleading"
IM also had to explain how FK referred to Systems as "your clients" [i.e. IM's client] he had done that with Harptree (see above). IM apparently missed the significance of this and attempts to put it down to FK's difficulty with the English language (paragraph 62). This account was reduced to zero (although further credits came in later) on 31st May 2000 as a result of an instruction from FK addressed to IM to pay £30,000 to AS. The instruction is "please make the following payment on behalf of your clients SYSTEMS INNOVATIONS INC". Both IM and ND authorise that on 1st June 2000. The remitter is identified as MCD. The remitter on IM's evidence was actually AFSL if his evidence above is accepted. According to the ledger the remitter ought to have been Systems. IM could not satisfactorily in my view explain why an AFSL ledger account was given the name of Systems. Nor was his explanation as to the misuse of language by FK satisfactory. There has been no explanation to why Systems had a client account with MCD. It is plain in my view that FK intended Systems to have a ledger account hence his instructions to make transfers on behalf of Systems. IM unquestioningly accepted FK's instructions to deal with the Systems ledger payments. He was unable (T33/19) to explain why Systems was remitting £30,000 to AS save it was on the instructions of FK.
"MR UDDIN: So when all these monies were coming in- $7,500,500 – you did not know which belonged to Access and which belonged to the State Intelligence Services
MR MEER: They all belonged to Access.
MR UDDIN: You would not be able to identify…..
MR MEER: We wouldn't be able to, no.
MR UDDIN: So you disbursed them as and how Mr Kabwe wanted.
MR DESAI: The only person who would know is Access because the money belonged to Access. Access would then say right, we want X to go here, Y to go somewhere else, because it is their money. At the point they receive it, it is their money"
"Where, by wrongful act or omission of a partner acting in the ordinary course of the business of the firm, or with the authority of his co-partners, loss or injury is caused to any person not being a partner in the firm, or any penalty is incurred, the firm is liable for the same extent as the partner so acting or omitting to act"
" However, this latter fact does not of itself mean that the firm is exempt from liability for his wrongful conduct. Whether an act or omission was done in the ordinary course of a firm's business cannot be decided simply by considering whether the partner was authorised by his co-partners to do the very act he did. The reason for this lies in the legal policy underlying vicarious liability. The underlying legal policy is based on the recognition that carrying on a business enterprise necessarily involves risks to others. It involves the risk that others will be harmed by wrongful acts committed by the agents through whom the business is carried on. When those risks ripen into loss, it is just that the business should be responsible for compensating the person who has been wronged.
 This policy reason dictates that liability for agents should not be strictly confined to acts done with the employer's authority. Negligence can be expected to occur from time to time. Everyone makes mistakes at times. Additionally, it is a fact of life, and therefore to be expected by those who carry on businesses, that sometimes their agents may exceed the bounds of their authority or even defy express instructions. It is fair to allocate risk of losses thus arising to the businesses rather than leave those wronged with the sole remedy, of doubtful value, against the individual employee who committed the wrong. To this end, the law has given the concept of 'ordinary course of employment' an extended scope.
 If, then, authority is not the touchstone, what is? Lord Denning MR once said that on this question the cases are baffling: see Morris v C W Martin & Sons Ltd  1 QB 716,  2 All ER 725, 724 of the former report. Perhaps the best general answer is that the wrongful conduct must be so closely connected with acts the partner or employee was authorised to do that, for the purpose of the liability of the firm or the employer to third parties, the wrongful conduct may fairly and properly be regarded as done by the partner while acting in the ordinary course of the firm's business or the employee's employment. Lord Millett said as much in Lister v Hesley Hall Ltd  UKHL 22,  1 AC 215,  2 All ER 769, 245 of the former published report. So did Lord Steyn, at pp 223-224 and 230. McLachlin J said, in Bazley v Curry (1999) 174 DLR (4th) 45, 62:
"the policy purposes underlying the imposition of vicarious liability on employers are served only where the wrong is so connected with the employment that it can be said that the employer has introduced the risk of the wrong (and is thereby fairly and usefully charged with its management and minimization)". (Emphasis added)
To the same effect is Professor Atiyah's monograph Vicarious Liability in the Law of Torts, (1967) p 171:
"The master ought to be liable for all those torts which can fairly be regarded as reasonably incidental risks to the type of business he carried on". (Emphasis added)
 In these formulations the phrases "may fairly and properly be regarded", "can be said", and "can fairly be regarded" betoken a value judgment by the court. The conclusion is a conclusion of law, based on primary facts, rather than a simple question of fact.
 This "close connection" test focuses attention in the right direction. But it affords no guidance on the type or degree of connection which will normally be regarded as sufficiently close to prompt the legal conclusion that the risk of the wrongful act occurring, and any loss flowing from the wrongful act, should fall on the firm or employer rather than the third party who was wronged. It provides no clear assistance on when, to use Professor Fleming's phraseology, an incident is to be regarded as sufficiently work-related, as distinct from personal: see Fleming, The Law of Torts, 9th ed (1998), p 427. Again, the well-known dictum of Lord Dunedin in Plumb v Cobden Flour Mills Co Ltd  AC 62, 67, draws a distinction between prohibitions which limit the sphere of employment and those which only deal with conduct within the sphere of employment. This leaves open how to recognise the one from the other.
 This lack of precision is inevitable, given the infinite range of circumstances where the issue arises. The crucial feature or features, either producing or negativing vicarious liability, vary widely from one case or type of case to the next. Essentially the court makes an evaluative judgment in each case, having regard to all the circumstances and, importantly, having regard also to the assistance provided by previous court decisions. In this field the latter form of assistance is particularly valuable."
" With this illustrative guidance I turn to consider on which side of the line is the present case. In drafting the consultancy agreements was Mr Amhurst acting solely on his own behalf? Or was he acting, although misguidedly, on behalf of the Amhurst firm? Had the claims against Mr Amhurst and the firm been tried to a conclusion the judge would have made findings of fact on what Mr Amhurst did, how he conducted his relevant business dealings with Mr Salaam and others, whether his conduct was dishonest, and whether he was acting for the firm or solely in his own interests. The court would have looked overall at all the circumstances. The court, and this House, would then have been properly equipped with the appropriate factual material with which to answer these questions. As it is, the only relevant plea in the particulars of claim is the compendious allegation that in doing what he did Mr Amhurst was acting in his capacity as a partner. In so far as this allegation is an allegation of fact, it is assumed to be correct.
 This is a factually meagre basis on which to decide a question of vicarious responsibility for assumed dishonest conduct. But there is no other factual material available. Perforce the House must do its best with this material. Proceeding on this footing, in this context 'acting in his capacity as a partner' can only mean that Mr Amhurst was acting for and on behalf of the firm, as distinct from acting solely in his own interests or the interests of others. He was seeking to promote the business of the firm.
 On this assumed factual basis, I consider the firm is liable for Mr Amhurst's dishonest assistance in the fraudulent scheme, the assistance taking the form of drafting the necessary agreements. Drafting agreements of this nature for a proper purpose would be within the ordinary course of the firm's business. Drafting these particular agreements is to be regarded as an act done within the ordinary course of the firm's business even though they were drafted for a dishonest purpose. These acts were so closely connected with the acts Mr Amhurst was authorised to do that for the purpose of the liability of the Amhurst firm they may fairly and properly be regarded as done by him while acting in the ordinary course of the firm's business".
" I must also mention a passing dictum of Lord Herschell sitting in the Court of Appeal in Mara v Browne  1 Ch 199, 208, to the effect that it is not within the scope of the implied authority of a partner in a firm of solicitors that he should so act to make himself a constructive trustee, and thereby subject his partner to the same liability: see also A L Smith LJ at p 212, and Rigby LJ at p 214.
 These dicta do not assist the Respondents in the present case. The claim against Mr Amhurst is that he dishonestly procured or assisted Mr Livingstone to commit a breach of the fiduciary duty he owed Dubai Aluminium. Such misconduct by Mr Amhurst gives rise to a liability in equity to make good resulting loss: see: Royal Brunei Airlines Sdn Bhd v Tan  2 AC 378,  3 All ER 97, 392 of the former report. The liability of a firm of solicitors in respect of acts of a partner which render him liable in this way depends upon an application of the ordinary principles relating to vicarious liability. There is no special rule of law applicable to this head of equitable liability.
 I do not think Lord Herschell or the other members of the Court of Appeal can be taken as suggesting otherwise. Their statements in Mara v Browne should not be so read. In so far as Vinelott J did so read these statements, or did so decide, in In re Bell's Indenture  3 All ER 425,  1 WLR 1217, 1230 of the latter report, I respectfully consider he fell into error. The statements in Mara v Browne were directed at a different question: whether acting as a trustee, although not having been so appointed, can be regarded as conduct within the scope of the business of a solicitor. Whether the views expressed by the Court of Appeal on this question are still good law, having regard to later developments in the principles relating to vicarious liability, is a matter I prefer to leave for another occasion.
KNOWING RECEIPT WHERE NO BENEFICIAL RECEIPT
"Turning to the authorities on the Criminal Justice Act, there are several which make it clear that a conspirator who acts as the collector or banker for the other conspirators will be regarded as having obtained a benefit in the total sum passing through his hands. In one of the earlier cases to this effect, Currey  16 Cr. App. R (S) 421, Lord Taylor CJ emphasised that benefit "does not mean that he has retained property, simply that he has obtained it." (page 424)
In Patel  2 Cr App R (S) 10,  EWCA Crim 2580, a sub-postmaster guilty of conspiracy was held to have benefited in the full amount obtained by using stolen benefit books, even though he had paid half the proceeds to an accomplice. Likewise in Metcalfe  EWCA Crim 1343 this court expressly applied the decision in the drug trafficking case of Simpson (ante) so as to hold that benefit was what passed into the Defendant's possession, whether or not he then retained it: paragraphs 12 and 13"
"(4) for the purpose of this Part of this Act a person benefits from an offence if he obtains property as a result of or in connection with his commission and his benefit is the value of the property so obtained"
CAVE MALIK (CM) BIMAL THAKER (BT) AND BHUPENDRA BHAILAL THAKER (BBT) (D2)
"Q. Cave Malik & Co, can you explain to his Lordship what that comprised as that time, in October 1995?
A. Cave Malik & Co has been in existence in Zambia for about 30 years now. I started the London office having acquired an initial practice and then changed its name to Cave Malik in 1993/1994.
Q. How many partners were there in Cave Malik London?
A. There have only been 2 partners, that is myself and my father…."
CLAIMS AGAINST BT, BBT AND CM
CAVE MALIK & CO LONDON (CM)
"I ….. wish to change the name of that practice [Kehimker & Co] to [CM] …. The reason for doing so is my client base is derived from an overseas connection and in furtherance to the operations of Messrs Cave Malik & Co in Ndola, Zambia. Although the two practices will not be related save for the respective partners appearing as consultants on each others letter head for continuity and client connections, I feel that the usage of the above name may assist greatly..…."
"the position is that I have changed the trading name of this practice to that as mentioned above. In order to attract a wider client base I have considered it appropriate to include father's name as a salaried partner with no other entitlement to the practice equity or otherwise. This continues for all other purpose to be my own practice. In other words I could have put father's name under the heading of Consultant"
"I refer to your approach in regard to our professional activities in Zambia and append below a brief profile of the firm (emphasis added) which may be useful at your end
This firm is the only multinational practice with its office in Ndola and a branch in Lusaka and London (emphasis added) it has been in existence for over 40 years and has a substantial part of that period been actively involved in providing legal services to [ZCCM]……"
This letter is possibly supportive of there being one Cave Malik firm with 3 distinct offices. More significantly it shows in my view strongly that BBT was at the very least a partner in CM and furthermore was aware of what its activities were. However it is the only evidence which could support AGZ's contention there was one firm. All other evidence in my view is contrary to that, the Zambian and UK notepaper, the UK accounts and the various transactions show BT sometimes having a role in CMZ but as a consultant not a partner in one firm. There is no evidence showing a connection with CMZ which appears to have been run independently. I reject AGZ's case therefore that there was one firm with three offices in the UK and in Zambia. However this does not have any impact so far as I can see because of my finding that BBT was a partner in CM throughout its operations.
COMMENCEMENT OF ASSOCIATION WITH FK/AFSL
"I did not review it that way. My position was that I was a new practice, I was trying to generate some business, this was my first transaction. I was told it was part of a commission, and it was the commission, and on that basis I took those instructions knowing it was to be distributed"
CM BEGINS TO RECEIVE ZAMTROP MONIES
RECEIPTS FROM REDCLIFFE/SHANSONGA
DECEPTION OF HABIB BANK
"I will only act for a client providing he/she is known to me personally. I carry out all the necessary due diligence as is required through my regulatory authorities, the Law Society, before I enter in to any transaction…."
On 27th March 2001 he had a meeting with Mr Dayel and Mr Sheikh at the Bank. He reiterated apparently that the monies were received in respect of genuine sales in respect of properties, mines, copper etc in Zambia done through his firm. That appeared to mollify Habib Bank. It was not true. He did not act as he suggested he would on any occasion. However in November 2001 (see below) when BT received $399,995 from OOP (being the second OOP payment) Habib Bank reported that transaction to NCIS.
"[After referring to the receipt of $500,000… following changes in off shore legislation, it is now essential for the bank to be fully aware of the nature of all entries passing through customers accounts and we should therefore be grateful if you could provide full details on the above transaction…. "
Barclays are therefore concerned as to money laundering. There are manuscript notes on the letter "BB Thaker" "proceeds of property sales". On 17th July 2000 Mr Whale at Caversham replied. In that letter he said that the monies had been received on behalf of a new client and they were in the process of completing their due diligence. By way of background it drew to Barclays' attention that the remitter was MCD a UK firm of solicitors who had transferred the funds following the sale of a property. I observe that no property transaction has been identified and monies in the Harptree account were supposed to be Government monies. The letter carried on that the monies were added to the funds already in the account and they will be used as security for borrowings made to a second offshore company which will total $1,000,000. The client was introduced to Caversham by BT who was stated to be well known both to Caversham and the bank.
BT CHANGES HIS STORY
OFFICE OF PRESIDENT PAYMENTS (OOP)
"As I believed AFSL to be the agent of the beneficial owner of [River Properties] I understood that I could (and did) act upon the instructions of Mr Kabwe. I did not know who, in fact, was the beneficial owner of [River Properties] and I did not ever ask"
CASH PAYMENT OF £30,000 TO FJT
CONCLUSION AS REGARDS BT
QUANTUM AGAINST BT
(N) ATAN SHANSONGA (AS) (D5)
CLAIMS AGAINST AS
(1) Dishonest assistance: $3,339,890 and £96,938. Of that amount the final GT produced figures (which were supplied to me at my request after the hearing) show $1,347,993 as being received by AS directly from the Zamtrop account and traced by GT. In addition there were transfers of $918,206.60 into the Shansonga BB account. GT have traced $725,754 of that and in addition have traced $53,495.60 cash. There were transfers from Zamtrop to Redcliffe's account at ZANACO London. GT has traced £811,457.98 but the total amount received from Zamtrop amounted to £1,215,447.21. It is stated that the $ equivalent is $2,001,766. Nebraska received $100,000 from the Zamtrop account on 15th November 1999. GT traced the full amount in GT 43 but has not allocated it in full to AS. Finally AS received into his Barclays account indirectly from the Zamtrop account £30,200 from CM and £60,000 from MCD and £6,738.05 from XFC. None of these payments and receipts by AS is disputed.
(2) Knowing receipt: as for dishonest assistance plus $302,000.
(3) Breach of fiduciary duty: $180,000 alternatively $170,000 (GT traced).
(4) Conspiracy: $25,754,316.
BRIEF SUMMARY OF CLAIMS
(1) He believed all monies paid to Redcliffe were Government monies
(2) With one exception he believed that all sums he is alleged to have received from Redcliffe and Zamtrop were Government monies save £4,946.90 paid into his Barclays Bank account on 7th July 1999. This was a bonus paid to him by ZAL.
(3) AS did not know that any of the money was Government money and does not know now that it was Government money. He requires AGZ to prove it.(He has done so in my view)
(4) AS did not know the sum of K398,520,000 was Government money and he did not knowingly receive it in breach of trust.
(5) It is not accepted that any of the money he (or Redcliffe or Nebraska) received was paid by XFC in breach of trust.
(6) AS's case is that payments made to Redcliffe, Nebraska and himself and the expenditure he made was on the instructions of XFC (given initially after meetings that took place between AS and XFC) and he believed was honestly made and that he AS was entitled to receive and make the payments. The belief was based on conversations he had with XFC.
(7) There is no evidence that these meeting did not take place or that they were not in the terms alleged by AS.
(8) Thereafter AS was asked to and did perform specific tasks from time to time and it is his belief that he was acting in a perfectly lawful way. On any view some of the expenditure was on goods and services that were intended to be and were demonstrably for the benefit of the Republic.
(9) He queried his instructions where appropriate and received satisfactory answers. When so acting he honestly believed on reasonable grounds that the expenditure was properly made because of (a) the nature of the expenditure (b) the circumstance in which it was made and (c) the oral reassurance given to him by XFC (d) the reassurance by the course of dealings with XFC.
(10) AS contends a running account evolved. This involved him, or where appropriate Redcliffe or on one occasion Nebraska receiving funds to make expenditure on XFC's instructions.
A NUMBER OF PRELIMINARY OBSERVATIONS
GT'S EVIDENCE CONCERNING AS'S RECEIPTS AND EXPENDITURE.
BASIS FOR AS'S INVOLVEMENT
"[XFC] told me that he could not tell me about the activities of ZSIS. He said that he was very sure that whatever ZSIS and he did in the United Kingdom was closely monitored by British Secret Intelligence Agencies, that they would know (and take action) if what was done was contrary to the United Kingdom law and that he would never ask me to do anything that was illegal. He said he was not asking me to spy for them or for Zambia" (paragraph 151)
AS'S FUNDAMENTAL CREDIBILITY FAILING
"and as we have seen, you are a person who would want to ensure that everything was done absolutely properly?
Yes, my Lord
And you would not act in an improper manner, even if requested or required to do so by [XFC]
Yes, my Lord
If you had cause to be concerned about [XFC's] instructions, you would no doubt satisfy yourself, would you that it was appropriate for you to continue to act?
Yes. If I was not clear about something I would ask for clarity, my Lord
If you were not satisfied as to the appropriateness, the propriety of what you were being asked to do, you would cease acting? Is that right?
That is correct my Lord"
AS'S FAILURE TO KEEP RECORDS
BURDEN OF PROOF
(1) That any monies were paid in breach of trust on the instructions of XFC to AS, Redcliffe or Nebraska.
(2) That AS received the monies dishonestly.
(3) That AS spent the monies dishonestly.
(4) That AGZ has proved that AS received the monies in breach of trust or pursuant to conspiracy.
(5) Assuming AGZ establishes the above is AS entitled to any credit.
AS COMMENTS ON EVIDENCE GENERALLY
ZAMBIAN LIFESTYLE YARDSTICK
PAYMENTS TO STELLA CHIBANDA
PAYMENTS TO CSW- BOB STANDAERT
PAYMENTS TO PROFESSOR MWEENE
PURCHASE OF MOTOR VEHICLES
PAYMENTS FOR SCHOOL FEES ETC
CREDIT CARD EXPENDITURE
OTHER CREDIT MATTERS
DGH POLY PRODUCTS
"When you told Mr Hamunjele that, were you telling him the truth?
A: Yes my Lord, I was.
Q: You thought the money came from [XFC]?
A: He said that the money – my Lord, what I don't understand what this sentence means
Q: I asked you if it was true what you said to Mr Hamunjele and you told his Lordship it was. Why didn't you disclose the involvement of [XFC] in funding the purchase price in your Defence?
A: My Lord, [XFC] had nothing to do with this. What transpired, when the investigations commenced, my Lord, in Zambia, it transpired that money had come from Meer Care to fund the purchase of DGH. When I got this information, I went to confirm to [FK]. He agreed to come to my house and I asked him what the position was and he told me now that Access has no limits. The money that was lent to me was beyond their limits and how was I to know (inaudible) said nothing like that to me. And then he said they got the money from the Intelligence, my Lord and this was new to me at this time (inaudible) my Lord"
CONCLUSIONS AS REGARDS AS
"On or before 9 October 2000 the said Directors, [AS] and MISS itself, wrongfully and with intent to injure MOFED and/or the Claimant and/or to cause loss to MOFED and/or to the Claimant by unlawful means conspired and combined together to defraud MOFED and/or the Claimant and/or to cause loss to MOFED and to the Claimant by unlawful means ….. by the misappropriation of monies belonging to MOFED and/or to the Claimants in fraud of MOFED and/or the Claimant ….. and to conceal such fraud and the procedure of such fraud from MOFED and/or the Claimant by using the Management Agreement as a façade to conceal such wrongful misappropriation".
(P) THE BK CONSPIRACY
EXAMINATION AND EFFECT OF DOCUMENTS
|Number||Date of transfer by MoF in Zambia||Amount and bank to which funds transferred||MoF payment instruction||Transfer from MoF bank account||Transfer to ABN-AMRO/ KBC Bank||BK account statements|
|1.||7 December 1999||$1.771 million/
|2.||21 June 2000||$1 million/
|10/16||10/14, 1.1/230||10/195, 10/196, 10/197, 10/199, 10/200||N/A|
|3.||8 September 2000||$1 million/
|10/19, 10/21||1.1/126, 10/170-1
||10/201, 10/202, 10/203, 10A/114, 10A/115||10A/33|
|4.||11 September 2000||$0.5 million/
|10/19, 10/21||1.1/126, 10/170-1||10/205, 10/206, 10/207, 10/208,10A/116, 10A/117||10A/33|
|5.||20 October 2000||$1.2 million/
|10/28||1.1/127-128, 10/172-173||10/209, 10/210, 10A/122, 10A/123||10A/33|
|6.||24 November 2000||$1.148 million/
|10/34||1.1/130, 10/174-175||10/214, 10/215, 10/138, 10A/133, 10A/134||10A/34|
|7.||13 December 2000||$1,327,173.91/
|10/36||1.1/131, 10/176-177||10/139, 10A/136||10A/45|
|8.||19 January 2001||$454,545.45/
|10/38-39||10/217, 10/186, 10/187-188||10/218, 10A/156||10A/34|
|9.||15 March 2001||$1.3 million/
|10/43||10/189, 10/190-191,||10/219, 10/220, 10/140, 10/221, 10/222, 10/224, 10/225, 10/226, 10A/160, 10A/161||10A/34|
|10.||18-27 July 2001||$3 million/
KBC Bank (completed in five instalments of 1x $1m then 4x $0.5m)
|10/61||10/60, 10/67-68, 10/182-183, 10/178-179||10/142, 10/230, 10/141, 10/145, 10/232, 10/146, 10/149, 10/234, 10/148, 10/147, 10/233-234, 10/236, 10/155, 10/156, 10/238, 10/153, 10A/176, 10A/177, 10A/178, 10A/180, 10A/188, 10A/189, 10A/194, 10A/195, 10A/196, 10A/197||10/35 (instalments 1 and 2);
10A/36 (instalments 3-5)
|11.||31 July 2001||$2 million/
|10/70, 10/72||10A/198, 10A/199||10A/36|
|12.||16 August 2001||$4 million/
KBC Bank (completed in two instalments of $1.9m and $2.1m)
|10/61||10/60, 10/182-183, 10/178-179, 10/67-68,
||10/157, 10/240, 10/158, 10/241, 10/160, 10A/201, 10A/202, 10A/203||10A/36|
|13.||13-16 November 2001||$1.5 million/
KBC Bank (completed in four instalments of $0.5m, $0.3m, $0.2m and $0.5m)
|10/73||10/270, 10/184-185, 10/180-181,||10/271, 10/273, 10/275, 10/276, 10/277, 10/278, 10/281, 10/280, 10A/233, 10A/234, 10A/238, 10A/239, 10/240, 10A/241, 10A/242, 10A/243||10A/39 (instalments 1 and 2);
10A/40 (instalments 3 and 4)
FATE OF GOVERNMENT MONIES PAID TO ABN-AMRO AND KBC ACCOUNTS
(1) $7,637,999 (in total) withdrawn in cash from KBC's USD account 1 and 2 on Mr Soriano's signature or on the signature of Jean Francois Chabala. Some of these withdrawals ($1,380,000 on 13th September 2000) in cash are very large. The debit slips have a code against them and code "518" means cash withdrawal.
(2) $129,900 to XFC on 24th October 2000.
(3) $100,000 to Mr Moses Katumbi on 21st December 2000 (he also received a payment from XFC's sterling account on 7th December 1999 of £12,121.21).
(4) $1,299,456.70 (in total) to MCD in 4 transfers between 22nd December 2000 and 23rd March 2001. These payments are traceable to MOF money paid into the KBC account. IM has accepted this in correspondence.
(5) $176,985 (in total) by 3 payments to CM between 10th October 2001 and 12th November 2002. These too are traceable to MOF money paid into the KBC account but that has not been acknowledged by CM/BT. In addition a further $200,000 was also paid by CM to the KBC account on 12th April 2002.
PAYMENTS TO XFC
MEER CARE $1,299,456.70
PAYMENTS FROM KBC ACCOUNT CREDITED TO MEER CARE LEDGER 3556/001
CM $176,985 DIRECT AND $275,058 INDIRECT PAYMENTS FROM KBC ACCOUNT
INDIRECT PAYMENTS FROM THE KBC ACCOUNT TO CM VIA MCD
$200,000 PAYMENT BY CM TO KBC ACCOUNT
(Q) THE BK CASE: THE CLAIM AGAINST EACH DEFENDANT
CLAIM AGAINST XFC
CLAIM AGAINST FTJ
CLAIM AGAINST SC
CLAIM AGAINST FK
CLAIM AGAINST IM/MCD
CLAIM AGAINST BT/CM/BBT
ZAMTROP CONSPIRACY LIABILITY
(S) FINAL NOTES