Anne Mbewe- Anamela v Embassy of Ireland (2023/HP/1762) [2025] ZMHC 59 (1 August 2025)

2023 /HP/ l 762 .. - IN THE HIGH COURT FOR ZAMBIA \}9LlC OF •. eoURT O . PRtNICtPAl . AT THE PRINCIPAL REGIST HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: ANNE MBEWE-ANAMELA AND EMBASSY OF IRELAND INTENDED DEFENDANT Before Honourable Mr. Justice G. C. Mulenga on 31 st July 2025 For the Intended Plaintiff· For the Intended Defendant: Mr. Abwino of Messrs. Ranchhod Chungu Advocates N/ A (Application ex-parte) RULING .. Cases Referred To: 1. Zambia Revenue Authority v Matalloy Company Limited - Appeal No. 10/2020 2. Sonali Weerackody and Another v Sreetharan Vallipuram and Others - Appeal No. 218/2022 3. Swain v Hillman [2001] 1 All ER 91. 4. Mukiibi and Another v Ssentongo, Application No. 88 of 2020 5. Legal Resources Foundation Limited v Norwegian Ministry of Foreign Affairs -Appeal No. 118/2018. 6. Dube and Another v. American Embassy & Another (2010) 2 BLR 98 IC. R - 1 • 7. Karen Njeri Kandie v. Alassane Ba & Another (2017) eKLR 8. Embassy of Sweden Nairobi v Lucy Muingo Kusewa and Another 2023/HP/l 762 - Civil Appeal No. 345 of 2017. Legislation Referred To: 1. 2. 3. 4. The High Court Rules, Chapter 27 of the Laws of Zambia. The Employment Code Act 2019. The Vienna Convention on Diplomatic Relations, 1961. The Diplomatic Immunities and Privileges Act, Chapter 20 of the Laws of Zambia. Works Referred to: 1. European Journal of International Law. Volume 27, Issue 3, August 2016, Pages 745-767. 2. Philippa Webb ''The Immunity of States, Diplomats and International Organizations in Employment Disputes: The New Human Rights Dilemma?'' 3. Fox, 'Employment Contracts as an Exception to State Immunity: Is All Public Service Immune?', 66 British Yearbook of International Law (1995) 97, at 98-99. 4. H. Fox and P. Webb, The Law of State Immunity (3rd edn, 2013), at 440-441. 5. United Nations Convention on the Jurisdictional Immunities of States and Their Property (UNCSI), UN Doc. A/RES/59/38 (2005). R-2 ~ 2023/HP/1762 1. INTRODUCTION 1. 1 This is a ruling on motion, suo moto, reviewing my earlier ruling on an application made on behalf of Anne Mbewe-Anamela, the intended plaintiff, to issue a writ and serve the said process out of jurisdiction. I shall throughout this ruling refer to the intended plaintiff simply as the ''Plaintiff' . 1.2 The delay in rendering this ruling is deeply regretted. It resulted from initial backlog which was exacerbated by further workload on the court's resumption of duty, following its inability, by reason of ill health, to sit for a continuous period of two months. 2.0 BACKGROUND 2. 1 As borne out by the proposed pleadings, the Plaintiff is a farmer employee the proposed defendant - the Irish Embassy in Lusaka, which represents the Irish Government in Zambia. I shall hereafter refer to the proposed defendant simply as the ''Defendant'' . 2.2 Until the resignation of the Plaintiff from the Defendant on 30th March, 2022 there subsisted a contract of employment between the Plaintiff and the Defendant, on permanent and pensionable terms (the "contract''). 2.3 By clause 21 of the contract, Zambian law was appointed as the governing law. Following separation from employment by reason of what the Plaintiff alleges to have been constructive dismissal, she R-3 2023/HP/1762 approached this court seeking leave to issue and serve writ out of jurisdiction. 2.4 On the 22nd of November 2023, this court dismissed the application in the following terms: ''I hereby dismiss the application as the plaintiff by the proposed process seeks to commence an action against an entity, namely, the Irish Embassy, which is the holder of diplomatic immunities and privileges under the Diplomatic Immunities and Privileges Act, and therefore enjoys immunity from suit.'' 2.5 The rationale for this earlier decision was that when a statute immunises an entity from being sued, as does the Diplomatic Immunities and Privileges Act, it would seem to follow that a provision of another law within the same legal system, which prescribes a procedure for suing, ceases to have any relevance. Prima facie, there cannot be a procedure for suing a person who is insulated from being sued. 2.6 However, immediately after delivering my ruling, it came to my notice that there is a growing jurisprudence globally for recognising a restriction to diplomatic immunity in employment matters. Upon considered reflection therefore, and within 14 days of my decision, I proceeded suo motu, to convene a hearing, the purpose of which was to advise counsel for the Plaintiff that I would be reviewing my decision. R-4 2023/HP/1762 2. 7 I have done so on tvvo bases. First, I have drawn authority from Order XXXIX rule 1 of the High Court Rules, which rule allows the court to review any judgment or decision given by it, upon such grounds as it considers sufficient, and, upon such review, to reverse, vary, or confirm its previous judgment or decision. I have also relied upon section 13 of the High Court Act and my inherent jurisdiction, as becomes apparent in a later part of this ruling. 3.0 INTENDED PLAINTIFF'S APPLICATION 3.1 The Intended Plaintiff took out ex-parte summons, a supporting affidavit, skeleton arguments and list of authorities for leave to issue and serve a writ of summons out of jurisdiction against the Defendant. The application was made pursuant to Order 10 Rule 16 of the High Court Rules. 3.2 The Intended Plaintiff on being granted leave to issue and serve the writ on .the Defendant outside jurisdiction, intends to file her writ of summons and statement of claim, seeking the following reliefs against the Intended Defendant: (i) Damages for breach of the contract of employment; (ii) Damages for constructive dismissal; (iii) Costs of and incidental to these proceedings; (iv) Any other relief the Court may deem fit. R-5 2023 /HP/ 1 762 4.0 ANALYSIS AND DECISION 4 .1 I have considered the supporting affidavit, skeleton arguments and list of authorities filed by the Plaintiff, for leave to issue and serve the writ of summons on the Defendant out of jurisdiction. As this \ivas an ex-parte application, no documents were filed by the Defendant. 4.2 Whilst I consider that in the circumstances of the present case, it is perfectly proper to take the approach that I have taken in invoking my inherent jurisdiction and Section 13 of the High Court Act, I should hasten to point out that this is a most exceptional course to take. It is therefore one which must be proceeded upon only in the most deserving of cases, vvhere doing so furthers the interests of justice. In proceeding this way, I find sanctuary in the decision of the Supreme Court in the case of Zambia Revenue Authority v Matalloy Company Limited fJJ - Appeal No. 10/2020, wherein that Court held that: ''A superior court is entitled in terms of its inherent jurisdiction to grant such relaxation where doing so would best serve the administration of justice, though such permission would be rarely granted and the circumstances would have to be exceptional or at least unusual''. (Emphasis mine) 4.3 Coming to the application, an application for leave to issue and serve a writ of summons on a defendant out of jurisdiction is premised on Order 10 Rules 15 and 16. Order 10 Rule 15 R-6 • 2023/HP/1762 provides for the causes of action in which leave to issue and serve writ out of jurisdiction applies . It provides that: ''15. Service out o,f the jurisdiction of a writ of summons, originating summons or originating notice of motion, or of a notice of such writ of summons, originating summons or notice of motion may be allowed by the Court or a Judge whenever- (a) --- {e) The action is one brought to enforce, rescind, dissolve, annual or otherwise affect a contract or to recover damages or other relief for or in respect of the breach of a contract {i) made within the jurisdiction; or (ii) made by or through an agent trading or residing within the jurisdiction on behalf of a principal trading or residing out of the jurisdiction .. (iii) by its terms or by implication to be governed by Zambian law; or it is one brought in respect of a breach committed within the jurisdiction of a contract ... ~ wherever made, even though such breach was preceded or accompanied by a breach out of the jurisdiction which rendered . - ... impossible the performance of the part of the contract which ought to have been R-7 2023/HP/ 1762 performed within the jurisdiction'' .. (Emphasis mine) 4.4 Further, Order 10 Rule 16 of the High Court Rules provides for leave to issue and serve originating process out of jurisdiction, and what should be contained in the application: '' 16. An application for leave to issue for service out of the _iurisdiction a writ o__f summons, originating summons, or originating notice of motion or a concurrent writ of summons, originating summons or originating notice of motion may be made ex parte to the Court or a Judge on deposit of the writ, summons or notice with the Registrar together with an affidavit in support of such application. The affidavit shall state- (a} the grounds upon which the application is made and the facts which bring the plaintiffs case within the class in respect of which service out of the jurisdiction may be allowed; (b} that the deponent is advised and believes that the plaintiff has a good cause of action or right to relief; (c) in what place or country the defendant resides or probably may be _found; (d} whether the defendant is a citizen of Zambia or not.'' (Emphasis mine) R-8 ,. 2023/HP/1762 4.5 The extracts above clearly suggest that before the grant of leave to issue and serve originating process out of jurisdiction, the court must be satisfied that the applicant has met the requirements set out under Order 10 Rule 15 and 16 of the High Court Rules. 4.6 The first consideration is whether the facts of the Plaintiff's case fall within the class of causes of action set out under Order 10 Rule 15, so as to justify the grant of leave to issue and serve originating process outside jurisdiction. The Court of Appeal in the recent decision of Sonali Weerackody and Another v Sreetharan Vallipuram and Others(2 J - Appeal No. 218/2022 guided that in fulfilling the first two requirements under Order 10 Rule 16 of the High Court Rules, the applicant must exhibit the draft writ of summons and statement of claim as required by Order 6 of the High Court Rules, if the eventual action will be commenced by way of writ of summons. 4. 7 Outside the paradigm of the immunities and privileges which the defendant might potentially enjoy, I am of the considered view that an action by the Plaintiff for breach of her contract of employment and for constructive dismissal, is a cause of action that falls under Order 10 Rule 15 (e) of the High Court Rules set out above. 4.8 Regarding the second consideration as to the Plaintiff's having a good cause of action or clear right to relief, the supporting affidavit does indicate this. I am however of the considered view that it is not enough to merely state that the intended process has R-9 • 2023/HP/1762 prospects of success. Without delving into the merits, I propose to address this. 4.9 As to what amounts to prospects of success, in the English case of Swain v Hillmanf3J [2001] 1 All ER 91, Lord Woolf, MR noted that: ''A real prospect of success means that the prospect for the success must be realistic rather than fanciful. The court considering a prospect for permission is not required to analyse whether the grounds of the proposed appeal will succeed, but merely whether there is real prospect of success.'' (Emphasis mine) 4.10 Further in the Ugandan case of Mukiibi and Another v Ssentongof4J, Application No. 88 of 2020, the Court stated that: ''A real prospect o,f success should be realistic and not just fanc(ful. A realistic prospect o,f success is more than _;ust probable or highly likely. It should be clear _from the application and circumstances of the application, that realistically, the appeal will be granted. This means that the grounds as to points of law meriting judicial consideration should be tenable from ~ the onset not just mere fW dissatisfaction expressed by the Applicants. It is not enough that the Applicant states in the R - 10 2023/HP/1762 application or affidavit that the appeal has a likelihood of success. It should be clear that the • decision that is subject of the appeal was made in error and a miscarriage of justice has been occasioned''. (Emphasis mine). 4.11 Although it is apparent that the cases cited both dealt with prospects of success in relation to an appeal, it is quite plain that, quite apart from these cases engaging a common theme, they would readily apply to prospects of success in relation to an originating action at lavv. It is to be observed, firstly, that an applicant must demonstrate its chances of succeeding in the matter. Secondly, the applicant must demonstrate that there exist certain points of law which require judicial consideration and are tenable in their nature. 4.12 In interrogating the prospects of success of the intended action as I must do in the case at hand, there are at least two crucial considerations upon which I must reflect. The first is whether the Defendant by virtue of the immunities with which it may be supposed to hold, could be subjected to a Zambian court at the suit of the Plaintiff for enforcement of contractual rights against the Defendant. 4.13 The second question would follow from an affirmative answer to the first, and is whether the Plaintiff has a clear right to relief. R - 11 • 4.14 Regarding the Defendant being clothed with immunities with respect of civil actions before the Zambian Courts, Article 31 of the Vienna Convention on Diplomatic Relations 1961 provides: 2023/HP/1762 ''Artie le 31 1. A diplomatic agent shall enjoy immunityfrom the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of: (a) A real action relating to private immovable property situated in the territory of the receiving State) unless he holds it on behalf of the sending State for the purposes of the mission; (b) An action relating to succession in which the diplomatic agent is involved as executor, administrator) heir or legatee as a private person and not on behalf of the sending State; (c) An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.'' (Emphasis mine). 4.15 The Vienna Convention on Diplomatic Relations was ratified and subsequently domesticated by the Diplomatic Immunities and Privileges Act, Chapter 20 of the Laws of Zambia. The position in customary international law is that disputes relating to employment matters just like commercial transactions fall R- 12 • under the purvieiv of private law . where immunity is restricted under the Vienna Convention. 2023/HP/1762 4.16 I should mention that despite my having undertaken a fairly diligent interrogation of the jurisprudence in this jurisdiction on the subject, my exertions have not quite yielded any decision that has adopted the position shared by a growing number of jurisdictions regarding the immunity of foreign governments in relation to employment matters. One case that canvassed matters of diplomatic immunities and restrictions within a context akin to, but quite distinct from, the issue now raised, was the Court of Appeal decision in Legal Resources Foundation Limited v Norwegian Ministry of Foreign Affairsf5J - Appeal No. 118/2018. That case, however, dealt with disputes concerning commercial transactions of a foreign government or its agents. 4.17 I find it convenient here, to quote Phillipa Webb, a learned and distinguished professor of International Law at Kings College, London. Writing in a journal of considerable juridical authority, the European Journal of International Law, in an article titled ''The Imn1unity of States, Diplomats and International Organisations in Employment Disputes: The New Human Rights Dilemma?", Professor Webb had the following to say at pages 745- • 767, about the three models under which various states recognise a sovereign immunity exception in employment matters: ''Under the first model, local courts treat employment contracts as a commercial or private law transaction within the general exception for R- 13 ,:. • 2023/HP/1762 commercial activity or transactions. This is the model employed by the US Foreign Sovereign Immunities Act and the Canadian State Immunity Act. Under the second model, special categories of employees are identified and subject to special regimes of jurisdiction that regulate their claims, such as diplomats, consul and visiting armed forces. Their claims are usually excluded from the employment contract exception, though there is differing practice on whether the immunity should cover all grades of diplomatic or consular employee. It is often used in combination with the first or third models. The third model provides a special exception for employment contracts separate to the general exception for commercial transactions. This is the model adopted in the 1972 European Convention on State Immunity {ECSI) and the 1978 UK State Immunity Act (SIA) (section 4). More broadly, it has also been the approach of the 2004 United Nations Convention on the . Jurisdictional Immunities of States and Their Property (UNCSI) (Article 11). '' (Underlining mine). 4.18 What emerges from this passage is that in employment matters, different states have taken different approaches to the application of sovereign immunity. It is significant that the European Union approach as well as that of the United Kingdom has specifically R- 14 .. .. 2023/HP/1762 carved out an exception to sovereign immunity where the sovereign enters into an employment contract with a subject. That this is a growing trend the world over, is borne out by a few more cases, some of which ring even closer to home, as next illustrated. 4.19 In the case of Dube and Another v. American Embassy & Anotherf6J (2010) 2 BLR 98 IC the Court held that: '' ... a sovereign enjoys immunityfrom suits and legal process where the relevant act which forms the basis of the claim is an act 'jure imperii: that is a sovereign or public act. On the other hand, the sovereign will not enjoy such immunity if the act -- which forms the basis of the claim is an act 'iure gestionis', that is, an act of a private law character ~ .... such as a private citizen might have entered into; particularly where fundamental rights are concerned ... '' (Emphasis ours) 4.20 Further, the Kenyan Supreme Court in the case of Karen Njeri Kandie v. Alassane Ba & Anotherl7J (2017) eKLR had this to say regarding the doctrine of restrictive immunity and opined as follows: '' •••• We too agree that the doctrine of absolute immunity would be anachronistic, and has been so for some time now. What immunity there is must be restricted or qualified so that private or R- 15 -. • - 2023/HP/1762 commercial activities cannot be immunized.,, (Emphasis mine) 4.21 Lastly, the Court of Appeal in the case of the Embassy of Sweden Nairobi v Lucy Muingo Kusewa and Another<8J - Civil Appeal No. 345 of 2017 dealing with whether the doctrine of restrictive immunity would be applicable to employment matters, had this to say after citing various cases: ''43. The next issue for us to address is whether the .. doctrine of restrictive immunity is applicable to employment contracts. A look at the comparative jurisprudence we have analysed above shows that employment contracts have been held to belong to the private law domain and State Immunity does not therefore apply. See Cudak v. Lithuania (supra); Dube and Another vs American Embassy and another and Sebina vs South Africa High Commission (supra). Our courts have also adopted that approach as can be seen in the Karen Njeri case (supra). We also note that the respondents were locally employed and their contracts of employment were therefore subject to the jurisdiction of the ~ ~ ... -- Employment and Labour Court.'' 44. To that extent therefore, we find that the learned Judge did not err in her conclusion that ELRC had the requisite jurisdiction to entertain the labour R- 16 - • " 2023/HP/1762 dispute in respect of the parties herein. Accordingly, we.find this appeal devoid of merit and dismiss it with costs to the respondents.'' (Emphasis mine) 4.22 If there is one common theme to be distilled from these authorities, it is that there is a noticeable attitudinal shift away from the concept of absolute sovereign immunity in employment matters. Judicial attitudes by a growing number of domestic courts are indee,d steadily drifting towards embracing the doctrine of ......... restrictive immunity as applying also to employment matters. I take it as now settled that Zambian law recognises the principle of restricted immunity of sovereigns in cases where such sovereigns engage in a commercial activity, as held in the Legal Resources Foundationf5J case. 4.23 The question is whether that exception extends to employment contracts. For reasons supported inter alia by the developing tendency exemplified by the cases cited earlier, I would venture to suggest - and it is my holding that - subject to certain qualifications, including where, for example, a domesticated treaty or a host-country agreement applies to modify the legal position, this exception to absolute immunity should extend also to apply to employment matters involving a sovereign and an individual in Zambia. This should be the case in at least two scenarios, as next detailed. R- 17 2023/HP/1762 4.24 The first scenario is the obvious case where, as is the case here, the governing law applicable to the case at hand, recognises an exception or restriction to sovereign immunity in employment matters. The second scenario is the exception to sovereign immunity which is established when the private international law doctrine of renvoi, is applied as next explained. 4.25 The doctrine of renvoi, - which, loosely translated from French, means to ''refer back to'' - is the conflict of law principle whose application has the effect of determining rights between two or more parties, say a domestic party and a foreign party, by reference to the foreign party's law, notwithstanding that the case falls to be determined within the territorial jurisdiction of the domestic party. This happens where the private international law rules of the domestic party provide that when a particular question or issue arises for determination, such question or issue is to be resolved by importing and applying a rule from the foreign state, that is to say, a rule which applies on the domestic plane of that foreign state. 4.26 The point may be illustrated in the following way. We take as a starting point, the fact that Zambian law was subscribed to without excluding its private international law rules, (otherwise called its conflict-of-laws rules). Assume next, for the gratuitous purpose of illustration only the following: (a) that Zambian law defers to the Irish position on the relevant point of law; (b) that the Irish statutory provisions on the point are identical to those of England and Wales; and R- 18 -- -.. (c) that English law expert opinion on the point is at hand. 2023/HP/1762 4.27 With the foregoing assumptions made, the renvoi doctrine would apply in this way: I would import section 4 of the English State Immunity Act 1978, and make a finding that English law recognises the doctrine of restricted sovereign immunity in employment matters and so hold that by operation of the renvoi doctrine, Zambian law will reflect the position under English, and by extension Irish, domestic law. 4.28 Happily, it is not here necessary to go that far. This is because I have already determined that Zambian case law, as espoused in the Legal Resources Foundation case, already provides an exception to sovereign immunity in respect of the acts of a sovereign which are categorised as acts Jure gestionis, (i.e., acts of a private character), rather than acts Jure imperii (i.e., acts of sovereign authority). 4.29 In my judgment, therefore, some species of employment contract could well be classified as falling within the ambit of private acts of a sovereign and the question whether the contract which is the subject of this suit is one such contract is a matter which can only be settled by an analysis of evidence adducible at trial. I have by this ruling therefore determined that the application of the principle of restrictive sovereign immunity now extends to some classes of employment matters. 4.30 Accordingly, I find that the doctrine of restrictive immunity is applicable to the Plaintiff's action, being one in the realm of employment law, and covered by Order 10 Rule 15 of the High R- 19 .. 2023/HP/1762 Court Rules, already cited above. Without delving into the merits, I adjudge that the Plaintiff's action is not a fanciful endeavour at unmerited relief; rather, it is a good faith attempt to seek redress arising from the Plaintiff's contract of employment with the Defendant, which designated Zambian law as the applicable governing law. Zambian law, featuring as it does, a principle restricting sovereign immunity in employment matters, would apply to restrict the immunities of a sovereign. It is therefore my holding that this requirement to demonstrate a righto relief has equally been satisfied. 4.31 The next consideration as to where the Defendant is domiciled or resident is a non-issue. Similarly, as to the question whether the intended Defendant is a Zambian or not, this consideration is inapplicable. Indeed, this is abundantly clear from the record. 4.32 On the whole, I find that the intended Plaintiff has met the requirements for the grant of leave to issue and serve the writ of summons on the intended Defendant out of jurisdiction as provided for under Order 10 Rule 16 of the High Court Rules and thus, grant the leave as was sought. 5.0 CONCLUSION AND ORDERS 5.1 I reverse and set aside my earlier ex-tempore ruling and hereby grant the Plaintiff leave to issue and serve her writ of summons on the intended Defendant out of jurisdiction. R- 20 ,. 2023/HP/1762 5 .2 I hold that subject to exceptions to be established on the peculiar facts of each case, the plea of absolute immunity of sovereigns in employment matters in Zambia is no longer available, and will, in appropriate circumstances, of which the present case is one, be restricted. 5.3 I hereby consequently order that the Intended Plaintiff issue and serve the writ of summons on the Defendant within fourteen (14) days from the date of this ruling as was sought. 5.4 I make no order as to costs. Delivered at Lusaka this 31 st day of July 2025. G. C. MULE ~1\ HIGH COURT JUDGE ~~ - _.....,. • • ~ 6- - - - - - P =- __,Jl · ~~1 1 0 r ~-·J\ IVl E1 J f' .. R ' ~....,, :J ~f~B ~ . Hi G }=! r. , j ~,, ij ' 1 'tl ~v,"-'~ • jl__ ·- " ' j .,:., - ' f • • ' . . . . . ~,C,..,. • • - , . j - .,, f lf-\ i . ,... . I I 1,) ('\, b, j '"' i' ., -- - • .f °' 1: fit I.· ~, r. J .,.• - . . .. ... I tJ(.· .\ Y(A \ ,, - . i l .j , - -·· t ~ ~ ' R- 21