INTRODUCTION

When a lawyer receives instructions from a client to sue, the first thing a lawyer does in
litigation is to identify a cause of action, in a hierarchy of things this comes first, forum then
mode of commencement.

The Practitioner’s (Conveyancing & non-contentious matters)(costs) Order 2000 SI No 8 of

2001- Regulates the costs of non-contentious matters.Commission chargeable on collection
of debts a fee not exceeding 10% of the amount recovered.If a matter is non-contentious you
write a letter of demand and get a fee of not exceeding 10%. However, if the defendant
refuses and you have to go to court to litigate you don’t use this scale but the second scale
because the matter has become contentious.

The Legal Practitioner’s (costs) Order 2001 SI No.9 of 2001- Involves contentious matters
such as how much you will charge a client if you are going to trial in the High Court.

When you get the instructions where do you look to, the first place you visit is the Statute
book which is a whole record of legislation in a given jurisdiction; it is a series of volumes
and registers of all enactments.e.g the Green volumes, Acts of Parliament, Statutory
Instruments, Practice directions e.g. those practising tax law commissioner general practice
notes.

Exercise No 1. Of 2015/2016 Answer

The Item of the Contract

In the statute book you will find The Acts of Parliament Act CAP 3 Vol 2 of the Laws of
Zambia. All the Acts of Parliament are governed by the Acts of Parliament Act (Read It).

There is a very short Act known as the Constitution of Zambia Act Chapter 1 Vol 1 of the
Laws of Zambia. Section 2 of that Act stipulates as follows; the constitution means the
constitution set out in the schedule of the Act, this thing we call the supreme law of this land
is a schedule annexed to chapter 1 Vol 1 of the laws of Zambia.

Section 9 of the Interpretation and General Provision Acts CAP 2 VOL 2 of the laws of
Zambia provides for the legal status of a schedule that is a schedule is part of the written law.

Section 5 of CAP 1 VOL 1 regulates the printing and publication of the constitution
separately. It states that the constitution maybe printed and published by the government
printers separatelyfrom this Act and the production of the Constitution so printed shall be
prima facie in all courts and for all purposes whatsoeverof the Constitution and all its
provisions. The printing has to be done by government printers not anywhere else.

These people are trading in the National Flag Article 3 of the Constitution states the national
anthem, flag emblem, and motto such that as maybe prescribed by parliament.

The National Flag and Armorial and Signs Act CAP 6 Vol. 2 of the Law of Zambia that law
provides for the national flag.
Sect 4, 5, 6 The National Flag Armorial and Ensigns Regulations 2011 which revoked SI
No.270 regulation SI of 1965.

SI 69 of 2011 which revoked SI 270 of 1965 subject to these regulations a person shall not
use for any purpose or fly the national flag without a licence. That is before you fly a flag you
have to apply for a licence from a Minister responsible. (Read the Act.)

That contract is EXTURPI CAUSA NON ORITUR ACTIO.On that ground alone that is an
illegal contract.

The Currency of the Contract

During 2013 what was the position of trading in dollars?

Section 29 of the Bank of Zambia Act No. 43 of 1996, it repealed the Act No 25 1985-The
Currency Act. Of interest to us is section 27 of the Bank of Zambia Act which gives power to
a Minister to make regulations regarding the national currency.

The BOZ (Currency) Regulations 2012 SI No.33 of 2012 which came into force 12 th May,
2012 this Act criminalised the quoting in any other currency apart from Kwacha for services
or goods in a domestic transaction.

The BOZ (Currency) (Amendment) Regulations 2012 SI No. 78 of 2012 Promulgated on 16

Nov 2012 making indexing (e.g. 10,000 dollars kwacha equivalent) foreign currency an
offence.

The BOZ (Currency) (Revocation) Order 2014 SI No.7 of 2014 promulgated 21 March 2014.
Revoked the 2 SI

They used to be Section 48 of the Liquors Licensing Act CAP 167 Vol 11- You cannot sell
alcohol on credit. Act No 20 of 2011.

The Money Lenders Act CAP 398 VOL 22 of the LOZ provides for dealings with money
lenders rate of interests etc. If you are not licensed as money lender that contract is not valid,
you can’t enforce it.

The leading case in this country on EXTURPI CAUSA NON ORITUR ACTIOis
MUHAMMAD ETOWALA V. VARIETY BUREAU DE CHANGE SCJ NO. 15 OF
2001

CAUSE OF ACTION

A cause of action was defined in Letang v. Cooper by Lord Diplock that it’s simply a factual
situation existence of which entitles a party to obtain a remedy from the court against the
other.

In Coburn v. College Lord Esther MR Defined cause of action as every fact which it would
be necessary for the plaintiff to prove, if traversed, in order to support his right to the
judgement of the court. It does not comprise every piece of evidence which is necessary to
prove each fact, but every fact which is necessary to be proved.

Once you have identified the Cause of action the question you have to ask yourself is
does the cause of action last ad infinitum (forever) in other words how long will the
cause of action remain alive from the day it accrues?

Where do you go to determine the limitation of the action?

The English Law (Extent of Application Act) CAP 11 V02 of the LOZ- section 2

.The Order in Council of NR came into force (1911)

The British Act (Extension) Acts CAP 10 V0l 2 of the LOZ- Section 2

From the above two Acts the law applicable in terms of limitation of actions is the English
Statute of Limitation Act of 1939. Then further we can look at the Law Reform (Limitation
of Action etc.) Act CAP 72 VOLUME 6 OF THE LAWS OF ZAMBIA– Section 2 & 3.

Section 2 of the Law Reform provides that section 21 of the Limitation Act 1939 shall seize
to have effect in the republic. And section 3 of the Law Reform Act abridges the time that a
cause of action in personal injury exist from 6 years to 3 yearsmeaning that if you bring an
action at expiring of 3 years that action is stall or rather statute barred. And the court has no
power to extend the time to bring an action.

The leading case in this jurisdiction is CITY EXPRESS LTD AND. SOUTHERN CROSS
MOTORS LTD APPEAL NO.118 2006/2007 ZLR. Here the High Court and Supreme
Court both held that one cannot bring an action to court when it is statute barred.
Therefore the case was not lost on merits ground but on the fact that it was statute
barred.

In the statute book which Limitation of Action Act-1939 provides the life span of different
life spans of some actions?(Read through this Act). This is the general law on limitation,
however more specifically statute themselves contain limitations.

Statutes themselves can contain limitation themselves e.g. Section 64 (4) of the Customs and
Excise Act CAP 322 VOL 18 of LOZ provides that any tax payer aggrieved under that Act
should bring the cause thereof within 3 months. An action under the Customs Excise Act is
within 3months this means after three months the action statute barred.

The case on point is ROYAL TRADING LTD AND. ZRA 2000 ZLR AT 86. Herein the
SC held that section 164 of the Customs and Excise Act has the same effect as the Statute of
Limitation of 1939 and the court has no power of extending the time within which to bring
the cause of action.

Another example is section 15 of the Competition and Fair Trading Act CAP 417 VOL 23 of
LOZ. This section provides that an action brought after 3 months is statute barred. The case
in point is BP (Z) PLC V. ZAMBIA COMPETITION COMMISSION, TOTAL
AVIATION AND EXPORT LTD, TOTAL LTD SCJ NO.21 OF 2011.

This case was referring to section 15 of the Competition and Fair Trading Actwhich was
repealed and replaced by the Competition & Consumer Protection Act No 24 of 2010 That
Act has similar provision as section 75 But the provisions are ipsissimaverba(exact word for
word.)

The Money Lenders Act section 18 CAP 398 provides inter alia that proceedings have to be
commenced before expiration of a period of 12 months from the date the cause of action
accrued.

Some law prevent starting of court process Section 164 (1) of the Customs & Excise Act
provides that a writ of summons shall not be issued without giving one month notice to the
authority.

A writ issued in that way without notice is not irregular but incompetent. In this regard see
the case of WINTER KABIMBA V. KACHINGWE. Herein a writ was issued without
notice to the revenue collector who raised a preliminary issue that the writ was incompetent
and the matter on that point only was not successful as it offended section 164 (1) of the
Customs Excise Act.

NB: DIMITROIS MONOKANDILOS 2011/HE/326herein the court discusses the

equitable principles which act as exceptions to the Limitation of Statutes among them are;

1. Disability
2. Acknowledgement and part payment
3. Fraud or mistake
4. Enemies and war prisoners.

ACKNOWLEDGEMENT AND PART PAYMENT

When you are computing time in law you exclude the day the event happens.

If the day includes Saturday you exclude Saturday while if the day is seven then you count
Saturday and Sunday.

When there is acknowledgement and part payment that part payment triggers a new life and
the new life starts running again. The action rises from the ashes. But where there is no
admission of liability or part payment that new life is not triggered. Look at the CITY
EXPRESS CASEon what triggers a new life span

You negotiate only for 12 years.

TRIBECA LENDING CORPORATION V. JAMES E MCCORMICK

Rule 39 of the Legal Practitioners Rules SI No. 51 of 2002 – the duty of the Lawyer is first to
encourage your clients to settle matters outside court (ex-curia).
As you observe your ethical conduct don’t risk your client’s case, as negotiations don’t stop
time from running.

ZCCM LTD V. JOSEPH DAVID CHILESHE SCJ NO. 21 OF 2002

TWAMPANE MINING LTD SOCIETY LTD V STORTI MINING LTD SCJ NO. 20
OF 2011

Herein the Supreme Court opined that the position of the law is that ex- curia settlement and
discussions do not and cannot stop the time from running.

2. IDENTIFY THE CORRECT FORUM.

When you have identified the cause of action and you are happy with it, it is the duty of the
lawyer to choose the correct forum for his case. Because forum goes to jurisdiction such that
if a lawyer goes to a wrong forum that forum might be wanting in jurisdiction and there are
consequences in a lawyer if he goes to a wrong forum.

Exercise No. 2 on Cause of Action

The right forum for this action is the Tax Appeals Tribunal not the Revenue Appeals Tribunal
which was dissolved this year by The Tax Appeals Tribunal Act No 1 of 2015 created the
Tax Appeals Tribunal. It enhanced the jurisdiction of the Registrar of the Tribunal. And most
importantly as per section 15 of that Act which provides that Appeals of that tribunal will lie
to the Supreme Court. This Tribunal now stands parri passu with the High Court.

Established under the Tax Appeals Tribunal Act No. 1 of 2015 it renamed and continued the
Revenue Appeals Tribunal which was established by Act No.11 of 1998. That Act renames
the Tribunal and also provides for appeals to lie to the Supreme Court (leap frog appeal)
pursuant to section 15 of the TAT Act No. 1 of 2015 unlike under the Revenue Tribunal Act
appeals used to lie to the High Court.

Those appeals should be on a point of law or point of law and fact. Not on a point of fact
only. When faced with the need to appeal look at the enabling Act first.

The case of MAZOKA & OTHERS AND MWANAWASA- the issue on ZRA ASYCUDE
systems on how to produce evidence on Asycude was dealt with in this case before the new
law came into force.

Customs and Excise (Amendment) Act No 2 of 2009- to amend tax law from talk time to air
time.

CELTEL (Z) PLC TRADING AS ZAIN V. ZAMBIA REVENUE AUTHORITY

2009/RAT/C&E

CELTEL (Z) PLC TRADING AS ZAIN V. ZAMBIA REVENUE AUTHORITY

2010/HPC/668
When identifying forum it is important to appreciate the various arms of government and the
locus of power. Part 4 of the Constitution of Zambia provides for the executive arm of
government in particular article 33 of the Constitution of Zambia, vests the executive power
in the president.

See clauses 90 and 91 of the Constitution of Zambia (Amendment) Bill 2015 National
Assembly Bill No. 17 of 2015.

The above clauses proposes the continue vesting of the said power in the presidency.

Legislative Power – Part 5 of the Constitution of Zambia provides for the legislative arm of
the government, in particular article 62 vests legislative power in Parliament i.e. the President
and the National Assembly.

Clause 6 of the Amendment Bill No. 17 of 2015, it proposes to continue vesting the
legislative power in parliament whereas article 33 of the constitution vests executive power
in the president and article 62 vests legislative power in Parliament. There is no article in the
constitution which vests judicial power in any arm of government. Thus Clauses 119 & 120
of the Amendment Bill No. 17 proposes to vest judicial power in the judiciary.

THE JUDICATURE

Article 91 of the Constitution of Zambia o provides for the existence of the Judicature
which shall consists of;

(a) The Supreme Court

(b) High Court for Court

(c ) Industrial Relations Court

(d) Subordinate Courts

(e) Local Courts

(f) And such lower courts as prescribed by an Act of Parliament e.g The Small Claims
Court established pursuant to the Small Claims Act Chapter 57 of the Laws of
ZambiaVol 4

COURTS

Article 91(2) provides for the existence of The Judicial (Code of Conduct)Act No. 13 of
1999, pay particular attention to section 20 which creates the Judicial Complaints
Office.

Article 91 (3) provides for the existence of The Judicature Administration Act
chapter24, Vol 3 of the Laws of Zambia. This Act was passed by parliament for the
administration of the Judicature. Pay particular attention to section 10 of the Act,
Which stipulates that the Chief Justice shall appoint a Judge where the High Court is
sitting who will be in chargeinter alia the allocation of the case. So when one files a writ
or any process into the High Court that goes to a Judge for allocation.

Section 11 of the Act provides for judicial precedence.

The Seniority of Judges at the Supreme Court – Is according to the day of appointment
to the Supreme Court.

The Seniority of the High Courtis according to the day of admission on the bar; see
section 11 of the Act. But this provision is observed more in breach. How they take it is
similar to the Supreme Court where seniority of the Judge is according to the day one
was appointed to the bench.

SUPREME COURT

Article 92 (1) provides for the existence of the Supreme Court

This is the final court of appeal. The finality of the court, there is no appeal beyond that
meaning that, thatcourt is not bound by the doctrine of stare decisis. However, in practice the
Judges try as much as possible to follow judgements passed by their predecessors but they are
not bound to by those judgements.

The Supreme Court Act

MARCH CORPORATION LTD V. DEVELOPMENT BANK OF ZAMBIA & THE

ATTORNEY GENERAL 1999 ZLR PG 13.

The above case involved loan facilities. The Supreme Court sat in the morning. In the
afternoon same facts, same lawyers and tried to convince the court that …per incuriam / per
dictum of the Judge …..(read the case).

Article 92 (2) the Judges of the Supreme Court shall be the CJ, DCJ, and 7 Judges or as may
be prescribed by an Act of Parliament.

Who allocates profession work in the Supreme Court? The Deputy Chief Justice is the
President of the Court or Judge President. He allocates the work to all the SC Judges
including that of the CJ.

The Supreme Court & High Court (No. of Judges) Act chapter 26 VOl 3 of the Laws Zambia
provides that the Supreme Court has 11 Judges including CJ & DCJ and the High court has
50 puisne Judges.

Article 92 (5) – the Supreme Court shall when sitting comprise of an uneven (3, 5, 7, 9& 11)
number unless it’s an interlocutory matter (which is a chamber matter). But article 41
provides that when hearing an election petition it has to be a full bench.
What’s a full bench? The answer was given in the case of LEWANIKA
AKASHIMBATWA & OTHERS V. CHILUBA 1998 ZLR 79. Where the constitution of
the bench of 5 SCJ was challenged, Full bench means the available maximum odd number of
Judges that could be mastered to hear the case.

When a coramjudicecoram non judice(what about this quorum).

Coram judice it means that the court is properly constituted e.g. for SC it has to be 3.

Coram non judicemeans that the court is improperly constituted therefore has no jurisdiction.

Article 92(1) gives the Supreme Court appellant jurisdiction. In addition to that Article 92 (5)
as read in together with article 41 gives the Supreme Court Original jurisdiction. It’s also sits
as the court of first and last instance.

HIGH COURT

Article 94 – Provides for the establishment of the High Court

The High Court can hear any matter anywhere unlike Magistrates Court.

ZNHL & UNIP V. AG 1993-4 ZLR pg 115 – the SC held the jurisdiction of the High Court.
That unlimited jurisdiction does not mean that its jurisdiction is limitless.Because the court
has to operate within the circumscribed spheres of the law

KELVIN HANG’ANDU & CO.(a FIRM) V. WEBBY MULUBISHA 2008 ZR PG 82

(2) The Supreme Court reiterated the dicta that unlimited does not mean limitless..

MIYANDA & OTHERS V. AG & OTHERS 2001/HP/1174- Stated that the Supreme court
is the right forum when hearing election petition.(Read the case)

EDWARD JACK SHAMWANA & LEVY MWANAWASA 1994 SJ 93 HC

MIYANDA & OTHERS V. AG & OTHERS SC 2001 HP11

ZNHL & UNIP V. AG 1994 SJ 22

LEWANIKA V. FREDERICK TITUS CHILUBA 1998 SCJ

Article 94(2) provides that the High Court shall be divided into such divisions as may be
determined by an Act of Parliament.

Currentlythere is no Act of Parliament which creates such divisions of the High Court.
However, there is a proposal in clause 121 (3b) of the Constitution of Zambia Amendment
Bill 2015 National Assembly Bill No. 17 of 2015.

The Case of JOSEPHAT MLEWA V. ERIC WIGHTEMAN SCJ NO. 1 OF 1996. The
division of the court referred to here is not constituted as stipulated according to Article 94
(2). It is an administrative arrangement.
Long ago in the history of our Judicial system the High Court was a court of first instance and
final court in election petition meaning there were no appeals to the Supreme Court. In this
situation three judges sat and disposed of the election petition inn finality.

In the matter of CHARLES MATAKALA SIKUKA (1978) ZLR AT PG. 138 -There are no
divisional courts in Zambia a High Court Judge sitting alone exercises the powers of
divisional court in hearing application of prerogative writs.

Look at order 54 of the White Book it deals with the writ of habeuscopus ides subsino Most
of the provisions there relate to the powers of divisional courts.

NB there are no divisional courts established under Article 94(2)

Article 94(3) - the Chief Justice shall be an exo-officio Judge of the High Court. The Chief
Justice shall be an ex-officio judge of the High Court. Meaning by virtue of office the CJ can
dissent and sit as a puisne judge and hear matters as the High Court Judge can do. The other
Judges of the SC cannot dissent only the CJ can and exercise powers of the puisne Judge.

Instances when the Chief Justice can descend.

Normally a CJ will descend when there is an important case either;

(i) There is a High Profile case and publicity, or

(ii) When the court would like to give guidance and set the law straight at first instance. The
three examples when the CJ descended are as follows;

1. BONAVENTURE BWEUPE V. ATTORNEY GENERAL, ZAMBIA PUBLISHING

COMPANY LTD& TIMES OF ZAMBIA LTD 1984 ZLR pg 21 herein CJ Silungwe
descended and set the law straight. The plaintiff in this case was a High Court Judge.

2. EDWARD JACK SHAWAMA V. LEVY PATRICK MWANAWASA (applies on exparte

injunctions too)

Herein Chief Justice Ngulube descended both the plaintiff and defendant were state counsel

MICHAEL C. SATA V. POST NEWSPAPER LTD & ANOTHER. Herein Chief Justice
Ngulube descended and set in the four levels of drunkenness jocose, bellicose,Lachrymokc
and Comatose were set out by the CJ.

Article 94(7) –Jurisdiction of the High Court to Supervise the Magistrates Court and Courts
Martial.

The provisions of section 136 of the Defence Act CAP 106 Vol 8 of the LOZ. There is an
inconsistence between that and Article 94(7) of the Constitution.

The PEOPLE V ROXBURGH 1972 ZLRpg. 31 two limbs Herein CJ Doyle descended

1. The CJ descended and called for trial because there was wide publicity of this case.
The Chief Justice descends because as the Chief Justice, he can’t supervise the Magistrate
Courts but when he descends and act as a puisne judge he can do that.

APPELLATE JURISDICTION OF THE HIGH COURT

Where does the High Court drive appellate Jurisdiction?

94 (1) appellate Jurisdiction of the High Court is conferred upon it by this constitution or any
other law. Appellate jurisdiction primarily is conferred by the constitution then any other law.

Example

Section 28 of the Subordinate Courts Act, chapter 28 Vol 3 of the LOZ provides that appeals
from the Subordinate Courts shall lie to the High Court on any judgement, order or decision
of the subordinate court. That is whether interlocutory or final, this is important because in
civil procedure an appeal can lie to the High Court on an interlocutory matter there is a world
of difference in criminal proceeding where an appeal on an interlocutory matter cannot lie to
the High Court.

See the case of MUFIYE MUBUNA V. THE PEOPLE 1984 ZLR pg. 66 which clearly
proscribes an appeal on an interlocutory matter in a criminal matter to the High Court. This
position was reaffirmed in the case of OLIVER JOHN ERWIN V. THE PEOPLE 1993-94
ZLR pg. 7.appeals in an interlocutory matter are available in civil procedure.

Section 28(2) of the Subordinate Courts Act provides that appeals from a subordinate court
shall be heard by one Judge excerpt were in any particular case the Chief Justice directs that
the appeal be heard by two Judges. The general rule is that appeals are heard by one Judge.

Exception is where the Chief Justice directs that two Judges sit to hear an appeal. Section
28(3) of the Subordinate Act where two Judges hear an appeal and the Judges are divided in
opinion i.e. they can’t agree the appeal shall be dismissed.

Section 30 of the Subordinate Act which provides for “case stated” this available for both
civil and criminal proceedings. Where the court is asked to state the case in the period of
appealfor the High Court to determine, the case will go to the High Court via case stated as
opposed to appeal.

Section 17 of the High Court Act Chapter 27 vol 3 of the LOZ epississimaverba (word for
word) section 28 of the Subordinate Court. They provide appeals from the Subordinate Act to
the High Court.

OTHER FORUM THAT CONDUCT CIVIL PROCEEDINGS

1. THE INDUSTRIAL RELATIONS COURT

This was established by article 91(c) of the Constitution and the Industrial & Labour
Relations Act Chapter 269 Volume 15 of the LOZ. It enjoys exclusive jurisdiction in labour
matters. An appeal from the IRC lies to the Supreme Court Section 97 of the I& LR Act
provides that an appeal from the IRC shall lie to the Supreme Court.

ON what point can you appeal from the IRC to the Supreme Court? Only on a point of law or
on a point of mixed law and fact. You cannot appeal on a point of fact only that appeal is
incompetent and misconceived.

The DPP can only appeal on a point of law conversely one by an individual can appeal on a
point of fact, law. Equally in the civil procedure, there certain statute that limits you right of
appeal.

2. THE TAX APPEALS TRIBUNAL

Established under the Tax Appeals Tribunal Act No. 1 of 2015 it renamed and continued the
Revenue Appeals Tribunal which was established by Act No.11 of 1998. That Act renames
the Tribunal and also provides for appeals to lie to the Supreme Court (leap frog appeal)
pursuant to section 15 of the TAT Act No. 1 of 2015 unlike under the Revenue Tribunal Act
appeals used to lie to the High Court.

Those appeals should be on a point of law or point of law and fact. Not on a point of fact
only. When faced with the need to appeal look at the enabling Act first.

3. THE LANDS TRIBUNAL

This was established by the Lands Tribunal Act No. 39 of 2010. Section 4 of that Act
provides for the jurisdiction of the Lands Tribunal.

The History of the Tribunal- it was established under the Lands Act Chapter 184 Vol 12 of
the LOZ. Appeals from that Tribunal used to lie to the Supreme Court directly.

KAWANAH MWENGELO V. RONALD BWALYA NSOKONSHI& NDOLA CITY

COUNCIL 2000 ZLR pg 13

AG V. STEVEN MUNGULU 2001 ZLR pg 116

HUMPHREY BANDA V. CHONGWE DISTRICT COUNCIL & OTHERS 2008 ZLR pg 96

in Vol 1.

The above cases discuss the jurisdiction of the Lands Tribunal then. The Supreme Act Held
that the Tribunal had no jurisdiction where either of the litigants were a holder of a title deed.

Further, had no power to issue injunctive reliefs, that it could not grant injunctions.

Also the Lands Tribunal could not rectify the Lands Register

The above issues necessitated the enactment of the Lands Tribunal Act No. 39 of 2010 which
was a legislative intervention to enhance the jurisdiction of the Lands Tribunal to give it wide
powers when dealing with land matters. It now has power to issue injunctive reliefs, rectify
land Register and hear matters where litigants have title deeds pursuant to section 4 of the
Lands Tribunal Act.

Section 16 of the Lands Tribunal Act provides that appeals lie to the High Court. This appeal
however, should be on a point of law, fact.

PLANNING APPEALS TRIBUNALS

Established by section 62 of the Urban and Regional Planning Act No. 3 of 2015 provides for
provincial planning tribunals. The predecessor of this Act is the Town and Country planning
Act which created the Town and Country Tribunal which has since been repealed.

THE RATING VALUATION TRIBUNAL

This tribunal deals with rates disputes paid to the local authority. The Rating Valuation
Tribunal was established by the RATING Act No.12 of 1997. Section 36 of the RATING Act
provides that an appeal of the RATING VALUATION TRIBUNAL shall lie to the High
Court on a point of fact and law that is fact alone, fact and law and law alone.

THE COMPETITION & CONSUMER PROTECTION TRIBUNAL

This was established by section 57 of the Competition & Consumer Protection Act. An
appeal lies to the High Court section 75 of that Act on a point of fact and law. The
predecessor tribunal was established by the Competition and Fair Trading Act chapter 417.

Limitation statute the Competion & Consumer Protection Act creates a bar.

LIQUOR LICENSING TRIBUNAL

Section 23 of the Liquor Licensing Act No.20 of 2011 establishes the Tribunal. Whose appeal
shall lie to the High Court on a point law but not a question of fact.

WORKERS COMPENSATION TRIBUNAL

This was established pursuant to section… of the Workers Compensation Act No.10 of 1999.
Section123 provides that appeals lie to the High Court.

THE ROAD SERVICE APPEALS TRIBUNAL

This is established by section 111 of the Road Traffic Act No.11 of 2002. Appeals lie to the
High Court.

THE INFORMATION COMMUNICATION TECHNOLOGIES APPEALS TRIBUNAL

Established under the Information Communication Technology Act No.15 of 2009.

THE HIGHER EDUCATION INSTITUTION STATUTE TRIBUNALS

Established by the Higher Education Act No. 4 of 2013.Appeals lie to the High Court.
AMENDMENT TO THE CONSTITUTION

When did the amended constitution become law i.e. when did it commence? When it was
published in the gazette.

How many instruments did the president assent to at Heroes Stadium? 2.

1. National Assembly Bill No. 17 of 2015

2. National Assembly Bill No. 16 of 2015

National Assembly Bill No. 16 of 2015 was the Constitution of Zambia Bill and No. 17 was
the Constitution of Zambia (Amendment) Bill.

The constitution is a schedule to an Act.

The President signed the Constitution of Zambia Act No.1 of 2016 this was the first
important Act to sign then he also signed the Constitution of Zambia (Amendment) Act No.2
of 2016.

No. 1 is the Act and Act No. 2 is the schedule which contains the constitution.

Section 4 of the Constitution of Zambia Act No. 1 of 2016 provides that subject to this Act
the Constitution of Zambia (Amendment) Act other than the ……..shall come in operation
on the commencement of this Act.

According to section 4 this means that when Act No. 1 comes into effect it will trigger Act
No. 2. Which is the Constitution Act No. 1 gives life to the constitution no matter how buckle
it is, is the schedule to the Act? So before you go to that in order to ascertain when it will
come into force you go to Act No. 1 and according to section 4 of this Act the Constitution of
Zambia (Amendment) Act No.2 of 2016 it will come into force on the commencement of Act
No. 1.

Section 4 only says when it comes into force it doesn’t give the actual date and in order to
ascertain when the constitution will come into force we refer to the Acts of Parliament Acts
CAP 3 - this Act governs all Acts of Parliament more importantly section 10 (1) of this Act
provides that subject to the provisions of this section, the commencement of an Act shall be
such date as is provided in or under the Act, or where no date is so provided, the date of its
publication as notified in the Gazette.

The Act will normally have a date when an Act will come into operation, it can even be
retrospective e.g. the Mines and Minerals Act of 2015 which was assented to by the President
in August and gazetted but the Act said it will come into operation on the 1st July 2015.

It can even come into force in the future date e.g. the ZAWA Act 12 of 1998 where a
commencement order was given.
However, where there is no date in the Act or the provision that the minister will issue a
commencement order (which gives a date when an Act will come into force) then the Act
comes into force by notice of publication in the government gazette.

Was Act No. 1 gazetted, Government Gazette No.6451 Vol LII No. 1 published at Lusaka
Tuesday 5th January 2016.

NB: Gazettes are normally published on Friday so Gazette No.6451 is a special gazette.

Gazette Notice No.1 of 2016.

THE NEW CONSTITUTION CAME INTO FORCE ON 5TH JANUARY, 2016.

What is a full bench of Supreme Court?

Article 126(3) of the Constitution of Zambia Amendment provides that the full bench of the
Supreme Court shall be constitutedby an uneven number of not less than five
judges.According to the case of LEWANIKA AKASHIMBATWA & OTHERS V.
CHILUBA 1998 ZLR 79.even 3 Judges would form a full bench but not anymore.

Further article 124 provides that there is established the Supreme Court which consists
of—
(a) The Chief Justice;
(b) The Deputy Chief Justice; and
(c) Eleven other Judges or a higher number of judges, as prescribed.

As it stands now the total number of Supreme Court Judges is 13 and Not 11 as was provided
before under article 92 of the repealed constitution.
Legislative authority

62 (2)the legislative authority of the Republic is vested in and exercised by Parliament.

The above provisions vests legislative authority of the republic is vested in Parliament.

Executive authority-Article 91 (2) The executive authority of the State vests in the President
and, subject to this Constitution, shall be exercised directly by thePresident or through public
officers or other persons appointed bythe President.

Judicial authority

There was no provision which vested such authority in any organ of the state but now article
119 (1) vests in the courts and shall be exercised by the courts in accordance with this
Constitution andother laws. For the first time in the history of this jurisdiction judicial
authority vests in Judicature.

NEW COURTS ESTABLISHED

Article 28 deals with enforcement provisions under the Bill of Rights.

Compare article 28 and article 128.Is article 28 and 128 parri pasu.

(1) Subject to Article 28, the Constitutional Court hasoriginal and final jurisdiction to hear—

(a) amatter relating to the interpretation of this Constitution;

(b) a matter relating to a violation or contravention of thisConstitution;

(c) a matter relating to the President, Vice-President or anelection of a President;

(d) Appeals relating to election of Members of Parliamentand councillors; and

There is no new constitution per se, it’s only an amendment but part III (the Bill of rights
remains sacrosanct; it can only be amended via a referendum.

According to article 128 (c ) it’s quite clear that the power to hear matters relating to election
of the President, Vice President is removed from the High Court and transferred to the
Constitutional Court which shall set as a court of first and last instance.

Legislative Intervention

Petitioning election as a member of parliament what forum do you use? The High Court and
an appeal to the Constitutional Court article 128(d).

Petitioning the election of the Councillor, previous it was to petition the High Court. Now
according to article 159 (2) you go to the Local Government Elections Tribunal

Alocal government elections tribunal (ad hocs) shall be presided over by a magistrate of
competent jurisdiction sitting with two legalpractitioners appointed by the Chief Justice.

Appeals from these tribunals go to the Constitutional Courts.

The question now is what is the jurisdiction of the High Court in this game of things.

Article 133 there is established the High Court which consistsof—

(a) The Chief Justice, as an ex-officio judge; and

(b) Such number of judges as prescribed.

Article 133 (2) There are established, as divisions of the High Court, theIndustrial Relations
Court, Commercial Court, Family Court andChildren’s Court.
 Therefore unlike before 2016, where there were no DIVISIONAL COURTS article 133 (2)
has established divisions of the High Court.

134. The High Court has, subject to Article 128—

(a) Unlimited and original jurisdiction in civil and criminalmatters;

(b) Appellate and supervisory jurisdiction, as prescribed; and

(c) Jurisdiction to reviewdecisions, as prescribed.

Previously there was no law which provided the High Court with Appellate Jurisdiction on
the HC but article 134 provides for such.

The key issue here is article 28 and what happens to breach of fundamental human rights
petitions.

The president signed two bills. The Constitution of Zambia Amendment Bill No 16 of
2015.The Constitution of Zambia Act of 2016. This is the Act which gives life to the
constitution.

PARTIES

It is duty of counsel to identify the correct parties. To identify whether the parties have
capacity to sue. High Court Act section 9(2) of the High Court Act

According to this section; Infants, Idiots & Lunatics who cannot look after their affairs have
no capacity to sue.

The case of FELIYA KACHASU V. THE ATTORNEY GENERAL 1967 ZLRpg. 145
where a girl of 11sued through her father ( Paul Kachasu her next friend) asking the High
Court for an order against the state, the AG appeared on behalf of the state pursuant to the
State Proceedings Act. This case illustrates the point that minors have no capacity to sue.

A critically ill person who cannot take care of their affairs can they sue?

Edmund Richard Hill by Thomas Denny Huckcourt Catchpole his next friend and
another V. Zalbro Ltd 1970 ZLR pg.The dicta

A person who has attained majority has capacity to sue serve for lunacy, idiocy, minor and
bankruptcy.

In this jurisdiction Order 14 of the HCR to be read inconsonance with the provisions of order
15 of the white book governs the province of parties.

Generally the person suing is described as plaintiff in terms of section 2 of the High Court
Act and a person being sued is called a defendant. And this is in terms of commencing an
action through writ of summons and statement of claim.
A person who has attained majority has capacity to sue save for lunatics, idiots and
bankruptcy. In this jurisdiction order 14 of the HCR governs the province of parties. Order 14
of the HCR have to be read in consonant with Order 15 of the White Book.

How is person defined in law?

Article 266 of the Constitution define person as follows;

Person means an individual, a company or an association of persons whether corporate or

unincorporated.

Section 3 of the Interpretation and General provisions Act defines person as follows;

A person includes any company or an association, or body of person’scorporate body or

unincorporated.

Previous article 139 (1) of the Constitution was ippessima verba of the provision of section 3
of the Interpretation and General provisions Act. The meaning of person was changed in the
current constitution amendment. But it has retained the concept of uncorporate.

Can unincorporated be sued? No for our purpose an incorporate cannot sue or be sued.

HARRY MWAANGA NKUMBULA &SIMON MWANSA KAPWEPWE V. UNIP 1978

ZLR pg. 388

Can you sue a club-It was held that an unincorporated body is not a legal entity it is not
capable of suing or being sued in its name it can only sue through someone representing that
club.

NATIONAL MILLING CO.LTD V.VANSHEE 2000 ZLR PG 98

Ngulube CJ opined an incorporated association is not a legal person it cannot sue or be sued.

SECRETARY GENERAL OF UNIP V. ELIAS MACHO CHIPIMO 1982 ZLR PG 125

An issue arose was the defendant correct part. No it was not because it didn’t not have legal
personality. A Secretary General of UNIP is neither a corporation sole nor a legal entity
hence it cannot sue or be sued by virtue of his office. It can only be sued by
in…….accordance with Order 14 of the HCR.

DR. LUDWIG SONDASHI V. B. GODFRY MIYANDA (sued as National Secretary of the

MMD)SCJ No.1 of 1995.

A COPORATON SOLE

Is a legal entity consisting of a single sole incorporated office e.g. of corporation sole in this
jurisdiction;
1. The Office of Chiefs article 266 of the Constitution defines Chief as follows;

Chief means aperson bestowed as chief and derives allegiance from the fact of birth or
descent in accordance with the customs, traditions, usage or consent of the people in the
chiefdom.

Article 166 (a) - The institution of chieftainship is a corporation sole, with perpetual
succession with the capacity to sue and be sued.PART 12 dealing with chieftainship.

The specific legislation dealing with Chiefs is the chiefs Act chapter 287 Vol 16 of the laws of
Zambia.

Section 2 of the Chiefs Act defines a chief means person recognised under this Act as an
holder of an office specified by on under section 3.

Section 3 regulates the recognition of Chief’ssubject

3. (1) Subject to the provisions of this section, the President may, by statutory order,
recognise any person as being, within the area in Zambia specified in the order, the holder of-

(a) The office of Litunga of the Western Province or of any other chiefly office in the
Western Province specified in the order;

(b) The office of Paramount Chief, Senior Chief, Chief or Sub-Chief.

Section 4 of the Chiefs Act talks about withdrawal.Suspicion and withdraws of chieftainship.

Read the Chiefs Act together with the District commission Act. CAP 288

Suspicion and withdraw of the Chief

If you want to sue the Chief be current with the holder of that office.

Chiefs Act together CPA 288 of the Laws of Zambia.

Section 9of the Chiefs Act provides for KAPASUS

2. Administrator General

Section 3 of the Administrator General’s Act chapter 58 V0l 5 of the LOZprovides for the
Administrator General‘s office. Section 3(2) of that Act shall be an incorporation sole and
has perpetual succession and be sued in his corporate capacity.

Look at Section 3(4) and of the Administrator General Act.

3. Official Receiver of Bankruptcy, Lunacy and Idiots

Section 21 (4) of the Bankruptcy Act Chapter 82 Vol 6 of the Laws of Zambia provides that
the Official Receiver shall be the corporate sole by the name of the Official Receiver, shall
have perpetual capacity and be sued by his official name.
4. The Minister of Finance

Section 3 of the Minister of Finance (Incorporation) Act, Chapter 349 Vol 20 creates the
Minister of Finance as a corporation sole with capacity to sue and be sued.

ZESCO LIMITED…No it is now a limited company under the Companies Act from 1998.

Hotel Intercontinental –You are the plaintiff who do you sue as defendant if you want to sue
Intercontinental. Before you sue establish the correct name of that entity so you go to PACRA
and check. The same goes for Shoprite, Game.

If you sue UTH you sue the AG’s Chambers. ZAWA you sue the AG’s Chambers.

Article 165(2) of the Constitution provides -parliament shall not enact legislation which—

(a) Confers on a person or authority the right to recognise or withdraw the recognition of a
chief; or

(b) Derogates from the honour and dignity of the institution ofchieftaincy

1. From the above article the following can be deduced. Substantive law does not operate
retrospectively, while procedural law at times may operate retrospectively.

They cannot be amendment to the constitution or to the law by implication they must be
express amendment to the law.

Definition of section 2(1) of the Income Tax Act CAP 323 VOL 19 of the laws of
Zambia.Person includes" includes anybody of persons, corporate or otherwise, a corporation
sole, a local or like authority, a deceased's estate, a bankrupt's estate and a trust, but does not
include a partnership;

Section 2 of the Companies Act Chapter 388 V21 of the LOZ which defines body corporate
means a company or corporation incorporated under or by virtue of the Laws of Zambia. This
is where parliament creates an institution as a body corporate.

ZIALE ACT Chapter 39 VOL 4 section 3 establishes the Council of the Zambia Institute of
Advanced Legal Education as a body corporate with a common seal, capacity to sue and be
sued.

Section 13 of the ZIALE Act constitutes the Zambia Institute of Advanced Legal
Education.ZIALE has no legal capacity it is the council which is established.

Council of the ZIALE as the Plaintiff.

CIVIL AVIATION is now a body corporate

Common leasehold Scheme

NON- JOINDER & MIS-JOINDER

NON-JOINDER

Order 14 Rule 5 (1) of the High Court Rules CAP 27 of the Laws of Zambia

Simply means a person in similar circumstances can join to already going on proceedings if
he demonstrates sufficient interest. E.G. Persons working in a Bank being dismissed in
similar circumstances. The rest can envoke Order 14 (5) (1) and join those proceedings. This
is commonly referred to as joinder of parties because they join proceedings.

MIS-JOINDER

Order 14 Rules 5 (2). Provides for removal of parties from proceedings, herein the parties
will be struck out.

NATIONAL MILLING CO.LTD V. A.VANSHEE (suing as chairman of Farmers

Union) the Court held that the question of misjoinder and or non-joinder of the correct parties
have predominated and it has relegated the issues on the merits to the background. Yet, our
Order 14 of the High Court Rules provides the necessary answers. For instance, Rule 5(3)
specifically prohibits the defeasance of suits for misjoinder or non-joinder which would be
the effect of acceding to the arguments by Mr Matibini and Mr Nchito. A perusal through the
reported cases shows that the courts have consistently upheld the principle underlying Order
14 Rule 5(3). Even in this case, the learned trial judge would have been perfectly entitled to
have exercised her powers to allow substitution of correct parties: For an example of a case
dealing with misjoinder or non-joinder we need cite only the case of Mugala and Another v
The Attorney-General (1). We accept that, arising from any substitution of plaintiffs, both
sides may wish to reformulate their respective cases; certainly, we can imagine the
defendants wishing to put forward against each represented plaintiff the subsequent bargain
under which wheat was purchased at reduced prices.

Order 14 Rules 5(3) of the HCR no suit shall be defeated by reason of non-joinder or mis-
joinder of parties. Herein the suit will not be defeated by reason only of non-joinder and mis-
joinder but you must be condemned in costs.

WIYTER KABIMBA (SUING AS SECRETARY OF PF) V. AG & GEORGE KUNDA

2011/HP/749

MICHAEL MABENGA V. SIKOTA WINA &OTHERS SCJN0.15 of 2003

LONDON NGOMA & OTHERS V. UNITED BUS COMPANY OF ZAMBIA SCJ NO. 22
OF 1999

The court will only give relief to parties to a suit not non-parties. That is they cannot benefit
from judgement not withstanding that they have Locus Standi or sufficient Interest.

ISAAC TANTAMENI C. CHALI (Executor of the Will of the late MWALLA

MWALLA) v LISELI MWALA (Single woman) (1997) S.J. 22 (S.C.)One of the grounds
argued by Mr. Chali related to parties to an action - He submitted that the inclusion of the
respondent’s child and her brother in the deceased’s Will was wrong in law and should be
struck out as not being parties to the action at any stage.According to the Rules of Practice
governing joinder of parties and due to non-joinder of parties before trial of the action, other
than the respondent, the learned trial judge was legally and effectively precluded from
considering the interests of non-parties.

It is important to describe the plaintiff correctly. Lack of such description can be fatal. Thus
lawyer should not rely on a client headed paper. A prudent practitioner should conduct a due
diligence.

Petrol Tech Oil (Z) Ltd V. Energy Regulation Board 2014/HP/1259 – Herein the
company at PACRA was Petrol Tech Corporation (Z) Ltd but the company headed paper was
Petrol Tech Oil Ltd. The preliminary issue in this case was that the applicant had no capacity
to sue because it was non-existent. Advocate for the applicant contended that was a mistake
therefore it was amisnomer.

IDEM SONANS (sounding the same) e.g. Eric, Erick, Iric that can be corrected .i.e. you can
correct a wrongly spelt name but a wrongly presented like Petrol Tech Oil Ltd and not Petrol
Tech Corporation (z) Ltd case cannot be cured. This takes it out of the realm of misnomer.
And Counsel herein was held liable personally.

COMPANIES ACT

The present Companies Act came into effect in 1994. Hence Companies that came into
existent via the predecessor Companies Act 686 according to section 4 of the Companies Act
CAP 388 such companies shall continue to exist. For purposes of High Court Civil Procedure
section 13 of the Companies Act provides for the different types of companies.

Section 13 of the Companies Act CAP 388 discusses types of companies: and there are 2
types of companies namely;

(a) A public company

(b) Private company limited by shares and there are 3 forms of private companies;

(i) Limited by shares

(ii) Limited by guarantee

(iii) Unlimited Company

Section 37(1) of the Companies Act provides that a public company shall have a name the
last word of which is PLC (this is mandatory).

These companies are PLCs and are listed on the stock exchange, there trading rules regulated
by the Security exchange commission.
QUOTED Companies Konkola Mines PLC, these are not listed on the stock exchange. And
hence pay Property Transfer Tax

A company with a name PLC you should know that you have capacity to sue and be sued.

Section 37(2) of the Companies Act –A private company limited by shares or limited by
guarantee shall have the name the last word of which is limited. The word LIMITED means
that entity has capacity to sue and be sued.

With regards to a company limited by guarantee section 37 of the Companies Act must be
ready in consonance with the provisions of section 39 of the Companies Act.

A company limited by guarantee can apply for permission from the Registrar of Companies
to omit the word Limited and this permission should be in writing. However, this does not
mean that company has lost its capacity to sue or be sued.

Section 39 (3) of the Companies Act the Registrar may revoke that permission given to the
company limited by guarantee. Once permission is revoked the Company limited by
guarantee is obliged to include the name LIMITED in its name.

LOOK at the provisions of section 43, 44 of the Companies Act.

Section 43 deals with holding Companies, Subsidiaries and related Companies.

Jimbo Holding Ltd

Jimbo Construction Ltd

Jimbo Enterprises Ltd

Jimbo Services Ltd

The above entities cannot be sued/sue for the breach or obligations of one come why;

1. Privity of contract

2. No locus standi

Once a receiver is appointed or when a company is under receivership it ceases to have

capacity to sue equally it can’t be sued. The Receiver or receiver manager moves into the
shoes of the company. Hence a company under receivership has no locus standi, it is the
receiver and the receiver alone who can sue or be sued in the name of the company.

Magnum (Z) Ltd v. Basit Quadri (Receiver/ Manager) and Greenless C. (Z) Ltd 1981 ZLR
at141.

Avalon Motors Limited (In receivership) V. B Leiga Gadspen (Receivers) SCJ No. 7 of 1998
Section 111 of Act 24 of 2011 Companies Act amendment governs the eligibility of the
appointment of receivers with regards to companies. Thus a Registrar of companies must
maintain a register of accredited Receivers.

Section 132 of the Companies Act registrar will maintain a register of accredited liquidators.
When is a Liquidator appointed, when there are winding up proceedings.

Section 339 of the Companies Act. Once a company is placed in liquidation all the stationary
must change on the letter heads, so that the public will know that the company is in
liquidation, if you don’t do that then you can be criminalised.

How many types of winding up proceedings/companies are there? 2. Being Voluntary

winding up i.e. done by the creditors and mandatory winding up done by the Court.

Winding up by the court is governed by Division 13.2 section 270 & section 312. This
division deals with winding up by the court.

Creditors’ winding up is governed by division 13.5 beginning with section 313 to section
317.

Division 13.6 which applies to every voluntary winding up which applies.

Where a court has been involved or where a petitionhas been presented to the court for
winding up of the Company section 281 is invoked and this section deals with stay of
proceedings.

Section 281 of the Companies Act provides that leave has to be obtained from court if one
has to proceed………..This section means that where a petition has been made to the High
Court for winding up of the company, any proceedings going on has to be stayed unless leave
is obtained from court to continue the proceedings. Equally where one wants to sue a
company placed under liquidation, leave has to be obtained from court to institute
proceedings. The act of placing a company under liquidation freezes proceedings.

Emmanuel N Chirumba v. Union Bank Zambia Ltd (In Liquidation) SCJ No. 7 of 2007

Section 317 (2) of the Companies Act you don’t proceed until you obtain leave from the
court. Section 317 relates to creditors winding up.

Credit Africa Bank Ltd (In Liquidation) v. Elias Namo Kundiona Judgement No. 9 of
2003.

When you are suing a company through a liquidator it’s important to name a
Liquidator.

N.B. MBAZIMA AND OTHERS JOINT LIQUIDATORS OF ZIMCO LIMITED (IN

LIQUIDATION) V. REUBEN VERA JUDGEMENT No 6. 2001 when dealing with forum.
Herein a sitting tenant of Zimco took the matter to Industrial Relations Court. The court held
that the correct forum was the High Court because it was a dispute about conveyancing.
Trading at arm’s Length. The department of civil Aviation is now a body corporate and under
housing units tenants sue the body corporate not a tenant. That is common leasehold scheme
Act.

COOPERATIVES SOCIETIES

The Cooperatives Societies Act Chapter 397 Vol 22 of the Laws of Zambia.

The Cooperatives Act No 20 of 1998 repealed the above Chapter 397.

Section 14 of the Cooperatives Societies Act No. of 1998 provides that a Cooperative Society
is a body corporate and have legal personality and have capacity to sue and be sued.

Section 68 & 69 part 9 of the Act which deals with Savings and Credit Corporative Societies.
Thrift corporative union must include;

When you want to sue a newspaper, where do you go?

Newspaper registration is governed by the Printed Publications Act, Chapter 161 Vol 11 of
the laws of Zambia. Section 5 relates to the registration of newspapers, it also cross
references to the National Archives Act, Chapter 125 Vol 12 of the Laws of Zambia. A
search should be conducted at PACRA pursuant to Registration of Business Act and under
the Companies Act and see which of the two is it registered under and determine how its
liability is and confirm by conducting a search by the National archives.

There are some newspapers only registered at National Archives e.g. Zambian watchdog.

When one is suing as a next friend, it’s important to file a certificate of consent to indicate
that you have consented to act as next friend. Look at Order 80 of the White Book 1999. This
stipulates the civil procedure that is applicable to procedure when one is suing as next friend.

David Brian Chandler v. Cape Plc 2012 3All 640 – When can a parent company sue. There
are circumstances when a parent company can sue. Herein they dealt with the case of caparo.

MODE OF COMMENCEMENT

WRIT OF SUMMONS

Order 6 of the High Court Rules

High Court Amendment RulesSI No.71 of 1997 here you were required to issue a writ of
summons or statement of claim as optional.

High Court Amendment Rules 1998 SI 69 of 1998 here under you has to file writ of
summons and statement of claim. This is the current law as it stands.

ORDER 6(1)(1) provides that excerpt as otherwise provided by any written law or these
rules every action in the High Court shall be commenced with a writ of summons endorsed
and accompanied by a full statement of claim.
Recap: Cause of action_ Forum _Parties _The mode of commencement.

The mode of commencement goes to jurisdiction.

CHIKUTA v. CHIPATA RURAL 1974 ZLR PG 241In that case it was held that the plaintiff
has no choice every action must be commenced by writ of summons that is the golden rule.

AMBER LOUSIE GUEST MILAN V. BEATRICE MUKALO MUKINGA & AG HCJ

2010/HP/03

How do you determine the Principal Registry? The Principal registry is at Lusaka and is
established by Parliament and all the other District Registries are established by the Chief
Justice.

Section 2 of the High Court Act and Order..rule 2 defines the principal registry as the office
of the Registrar at Lusaka. Section 2 of the HC also defines district registry means registry
established under the provisions of section 39 (1) of the HC Act. Section 39 provides that the
Chief Justice may by statutory notice establish district registries.

Section 39(2) of the HC Act provides that the Chief may vary or revoke the notice
establishing a district registry. Ndola, Kitwe, Livingstone, Kabwe, Chipata, Mongu.

Section 42(1) of the HC Act provides for removal from the district registry to a principal
registry or another registry.

Section 42 (2) of the HC Act which talks about removal of proceedings from the principal
registry to the district registry.

The High Court Act has two schedules.

1. Prescribed forms

2. Prescribed fees

HPon the cause number is obtained where-under what authority, look at the first Schedule of
the High Court Rules and focus on the notes. HC Civil Procedure Prescribed form No.1

IN THE HIGH COURT FOR ZAMBIA 2016/HP/…..

AT THE PRINCIPAL REGISTRY

HOLDEN AT LUSAKA

(Civil Jurisdiction)

BETWEEN:
You are commanded in the president name…. is provided for under section 15 of the High
Court Act which provides that all writs ……..shall run and be in the name of the president
and …….

You are commanded in the president’s name that within 42 days after the service of this writ
on you.

The period of entering appearance must is left blank. It is Counsel who indicates the period.
According to the practice direction No.4 of 1977 indicates the time within which appearance
must be entered in court writs shall be as follows;

1. Where a writ is served less than 100KM …..14days

2. Where a writ is served at a place 100KM or more but less than 500KM the time is 21 days

3. Where a writ is served at a place 500KM or more the time of which an appearance will be
30 days.

4. Where a writ is served at a place outside Zambia the time shall be 42 days the Registry

Also look for the legal Calendar and Practice Directions No.4 of 1977

5. The Registrar or District Registrar may extend the period

6. Section 22 of the State Proceedings Act Chapter 71

Who issues a cause No? Section 6, 7, 8 of the High Court Act.

Pursuant to the provisions of section 7(1) government notice of 293 of 1960 was issued that is
the High Court (Jurisdiction of Registrars) Rules.

Section 7(2) of the High Court (Jurisdiction of the Assistant Registrar Rules) Government
Notice No.310 of 19…& SI No… 1964

Section 8 Direction of the Chief Justice Duties and Functions of Assistant Registry and
Deputy Assistant Registrar Government notice 292 of 1960 No.9 1961, 23 1961 497 of 1964.

Paragraph 3(a) deals with Cause No. in general and also tells as whose duty it is to give cause
numbers and this is ….

In witness the Honourable Ireen C. Mambilima Order 6 Rule 3 HC Rules.

Tested and witnessed, it is important to indicate the year in the cause No. and in the
concluding part.

Dated the ……………………..day of …………………….

The HIGH Court has got no jurisdiction to commence anyother action except via writ of
summons.
The year has to be current order 6.R.3 of the High Court Rules says that the writ must
indicate the date. The date is important because the writ of summons has a lifespan, it
becomes stale, and the lifespan of a writ is 12 calendar months. After that the writ becomes
stale. Look at order 9. R.1.of the High Court Act CAP 27 together with the notes (note 1) of
the First Schedule.

Look at the prescribed form (schedule 1) writs issued from the principle registry and district
registry. Look at note 1 of both schedules for the date of expire.

The writ should be served within those 12 months. For example, if a writ is issued on the 22 nd
April 2016, it will expire on the 23rd April, 2017. Section 20(4) of the Interpretation and
general provisions Act CAP 2 of the laws of Zambia provides that any provisions of an SI
which is inconsistent with principal legislation that SI will be void to the extent of its
inconsistent.

Counting time is provided for by the constitution,and the Interpretation and General
Provisions Act and these provisions indicate that when counting time you exclude the date of
issuance. When you are counting time for the life span of an originating process i.e. writ of
summons, petition, Appeal etc. you exclude the date of such issuance.

If you are unable to serve the writ before 12months then you have to apply for renew for
another 6months. But application should be before the expire date.

How is the application for renew of the writ of summons made?

1. Seek leave of court via exparte summons plus affidavit explaining why you are unable to
serve writ within the 12 months.

2. Once the Judge has granted leave i.e. exparte order for renew the lifespan of the writ
according to Order 9 (1) you now apply for renew using form 12 of the first schedule. Rule to
serve

A praecipe is a command a simple paper on which a party to a proceeding writes the

particulars of a document which one wants prepared and issued. The part then hands it to the
officer of the court whose duty is the renew of the writ. This is done as a matter of right.

Leave has been granted how do you apply for renew a writ? Praecipe this will run for
6months only.

PETER MUTALE V. AGRO FUEL LTD,MADISON CORPORATION LTD, MULLAN

SHABOCO MBOZI HCJ 2011/HB/49 Judgement of Judge Mulenga. Order 9.R (1) no writ
of summons shall be enforced for more than 12 months…………..the plaintiff may apply for
the renew of the writ which when granted maybe renewed by praecipe for the next six
months.The renew is not a matter of right is a matter of grace.

Another important feature of a writ of summons is to be found on the flip side of the writ….”
Where it says the plaintiff claim is …bla, bla..That is the part for endorsement of the
plaintiff’s claim.
How do you conclude a writ that is endorsement of the address.

It is a duty of counsel for the plaintiff to endorse:

1. The advocate’s address

2. Plaintiff/ Plaintiffs addressesthis is provided for by order 7. R.1 for endorsement of writ as
follows;

a. Physical address of the firm

b. Postal address

c. Email address

After that you now endorse the plaintiff’s physical address, postal and email address. Failure
to do that makes the writ of summons irregular and incompetent.

LEOPHARD WARFOLD (Z) V. UNIFREIGHT (1995) ZR pg. 203 which emphasised the
need to endorse the address for both the advocate and the client failure of which makes the
writ irregular. The court further went to say that the defect is not fatal but curable at a cost.

Order 7.was amended by Act No.27 of 2012 which rule now include electronic address.

NYATI CONSTRUCTION LTD V. P..CONSTRUCTION & P HOTELS CONSTRUCTION

(Z) LTD (2013) Herein the court dismissed the case because it lacked the requisite electronic
address.

It is very important when litigation counsel has instructions, to firstly establish the potential
defendant’s physical address, postal address and electronic email and also the address for the
place of business. This is important for the sake of service of process.

If the defendant resides outside jurisdiction you cannot issue a writ of summons without first
obtaining leave from court to issue that process. Order 10 R.15 & 16 of the HCR. In practice,
you prepare an exparte summons for leave to serve originating process outside jurisdiction
pursuant to order 10 R.15 & 16.

Ordinary summons as a general rule are only used in a matter which is already active i.e.
interlocutory applications. But where you are serving outside jurisdiction you start with
exparte summons ( an ordinary summons) with an affidavit indicating that the defendant
exist outside jurisdiction, then you exhibit a writ of summons and statement of claim. And the
third document will be an exparte order, sometimes even certificate of urgency. Once leave is
granted that is when you file the writ.

NB: You cannot apply for leave after you have filled a writ already. It is a condition
precedent. That is a writ can only be served after leave has been obtained from court not
before.
The leading case on leave before writ is served look at the case of Leophald Walford (Z) Ltd
V. &Unifreight. Herein it was held that leave ought to be obtained and exhibited before one
serve a writ of summons.

Endorsement of writ of summons shall be endorsed by Order 6. R. 4.

Practice direction No. 4 of 1977 is inspired by Order 6. R.4.

YONASHI MONDE V. FREIGHT LINERS & MERIDIAN (Z) LTD J No. 7 (1999).

ORIGINATING SUMMONS

Order 6. R.1 (2) of the HCR

“Any matter to be disposed of in chambers shall be commenced by originating summons”.

AMBER LOUSIE GUEST MILAN V. BEATRICE MUKALO MUKINGA & AG HCJ

2010/HP/03 this is an important case on originating summons. It elaborates the place of
originating summons has in mode of commencement. The issue in this case was the matter
correctly commenced.

HOW DO YOU DETERMINE WHICH MATTER HAS TO BE HEARD IN

CHAMBERS?

The law determines which matter will be heard in chambers and which matter will be held in
open court. Equally commencement takes into account where will the matter be heard.
Example a matter commenced by writ of summons will be heard in open court similarly a
matter commenced by originating summons is conducted in chambers.

A matter commenced by way of originating summons plus an affidavit is heard in chambers

and those are matters whose evidence is not contentious.

Order 30 of the HCR is instructive as to which matters must be determined in Chambers.

Application and proceedings in Chambers?

Order 30 R.11 catalogues the business to be dealt with in chambers. This list is
not inclusive it is exhaustive.

1. PROBATE: Testamentary disposition (deceased estates) in terms of proposition or being

eligible to the portion under a Will etc. intestate or testate. See Order 30.R.12.

See the case of Mwalla Mwalla how it is commenced? It was a testamentary disposition. That
is how to challenge a Will.

SETTY –KEY-TRUST-Matters arising out of trust

Authorities on Order 30 R.12

GREY NACHANDWA MUDENDA V. DOROTHY CHILESHE MUDENDA (2006) ZLR
pg. 57. SC

LINDIWE KATE CHIYUNTA V. DOREEN CHIWELE & JUDITH TEMBO SCJ 28.
(2007) Herein the widow sued that she was entitled to be an administrator of her husband
estate. It was held that there is no such a law which says that a widow should be an
administrator.

BELINDA KAMANGA (SUING AS MOTHER ON BEHALF OF KATETE (MINOR) V.

CHANDA BWALYA KATETE (SUED IN HER CAPACAITY AS ADMINISTRATOR OF
THE LATE JONAS KATETE ) &KUNDA (SUED IN HIS CAPACITY AS
ADMINISTRATOR OF THE LATE JONAS KATETE2010 HP/04/53. Judgement by Dr.
Matibini SCJ

The above matters are disposed of inchambers orJudge at Chambers.

2. COMMERCIAL TRANSACTIONS -Order 30 R.14 of the HCR

A. Foreclosure: A borrows one kwacha from B what mode of summons do you use? Sue by
Writ of summons. What if A is a bank, what you use is originating summons. Under a
mortgage action/foreclosure proceedings are always via mode of commencement.

Order 30 Rule 14 gives instructions on how to

Order 6 (1) Excerpt as………. (Refer to the HCR)

B: Arbitration: Party to a contract will add a dispute resolution mechanism. In this

jurisdiction the law that regulates arbitration includes the following;

(i). Arbitration Act No.19 of 2000

(ii) The Arbitration (Court Proceedings Rules) 2001 SI No. 75 of 2001

(iii) The Arbitration (Code of Conduct & Standard) Regulation 2007 SI No.12 of 2007.

The Arbitration Act No.19 of 2000 has domesticated some important International laws like
the model law. The New York conventions have been domesticated.

a.If A and B executes a contract and that contract has an arbitration clause and has been
breached and the other party goes to court and sues via a writ of summons and statement of
claim,And then you discover that the contract has an arbitration clause. What does one do?

When the parties include an ADR clause in a contract there are choosing the mode of dispute
resolution and it does not mean that there are not ousting the jurisdiction of the court. All
there saying is that the court is the last resort. Thus the other party is at liberty to stay those
proceedings pending arbitration. Section 10 of the Arbitration Act No. 19 of 2000

Arbitration clauses are sometimes referred to as SCOTT V. AVERY CLAUSE, from the case
of SCOTT v. AVERY (1843 -60) ALLER Rep 1
Section 10 gives the court the power to stay proceedings and states that any other party at
liberty to apply. However, this section does not tell us how that application must be launched.

Rule 4 of the Arbitration Court Proceedings Rules SI No.75 of 2001- this rule tells us how an
application under section 10 should be made and that is through originating summons to the
Registrar or to a Judge if proceedings are pending before a Judge

b.Section 11 of the Arbitration Act: Arbitration Agreement and interim measures by the
court. How a party seeking interim relief pending arbitration is seeks that relief. According to
Rule 9 (1) of the Arbitration Court Proceedings Rules such an application says that such
application shall be made to a Judge by originating summons.

Parties in an agreement including an arbitration clause can chose an arbitral tribunal.

c.There is also a court appointed arbitrator section 12 of the Arbitration Act provides for
appointment of an arbitrator by the court.

How then do you apply to have an arbitrator appointed by the court? Rule 10 (1) of the
Arbitration Rules tells you how to approach the court. An application shall be made via
originating summons to the Registrar of the High Court. Thus, if an application is made to a
Judge you can raise a preliminary issue.

VENGELATORS & VENGELATORS herein a lawyer sought to seek appointment of an

arbitrator by making an application to a Judge. A preliminary issue was raised to the effect
that the Judge had no jurisdiction.

Thus, it is important to look at the Act and the Rules to know how to commence the action.

d. Application for executory assistance(this is where you ask the court for assistance) –
Section 14 of the Arbitration Act read together with Rule 13 of the Arbitration Rules provides
how to apply for the executory assistance and it is via originating summons to a Judge of the
High Court.

e.Enforcement of Awards:Section 18 of the Arbitration Act provides for the enforcement of

awards. Rules 14 and 22 of the Arbitration Act, Rule 22 of the Arbitration Rules provides that
a party seeking enforcement of an Award may invoke any of the processes available under
the High Court Rules for enforcement of judgements including Writs of possession, Writs of
elegit and writ of fifa.

Rule 16 of the Rules provides for registration of the award. Application for registration is via
exparte originating summons to the Registrar of the High Court,

One cannot appeal on an award but the court can set aside. Section 17 of the Act fives
instances when you can set aside an award. It is not easy to set aside an award. How do you
approach the court inorder to set aside an award Rule 23 of the Arbitration Rules shall be
made via originating summons to a Judge of the High Court.
C: CONVEYANCING

For example when suing to have a caveat removed? How do you commence an action for
removal of a caveat? It is a matter disposed of in chambers before a Judge. This is action is
commenced by originating summons before a Judge.

SOBIC LODGES LTD V. ZAWA 2008/HP/ 668

RURAL DEVELOPMENT CORPORATION V. BANK OF CREDIT AND

COMMERCE LTD ZLR (1987) PG. 35 the HC held that the correct mode of
commencement for removal of a caveat is by originating summons.

D: ACTION AGAINST A LAWYER

Originating Summons is how you commence as action against a lawyer for example where
that lawyer has not been managing the client’s money. How can they commence such an
action to obtain an order to inspect the lawyer’s accounts? The mode of commencement
originating summons.

REMY KABANDA MUSHOTA V. LAZ Judgement No. 11 (1985)

E: HOW TO COMMENCE AN ACTION TO REMOVE SQUATTERS FROM YOUR

LAND? There are two ways of dealing with this; here we are not talking about tenants
(including tenants at sufferance.

1. The doctrine of self-help

Whilst recognising the doctrine of self helf the provides for the procedure in the white book
Under Order 113 provides for another way of removing squatters. This process is
commencement by originating summons

The format is found in form 11(A) Volume 2 of the White Book. This shifts the burden to the
Sheriff of Zambia.

MCPHAIL V. PERSONS NAMES UNKNOWN, BRISTOL CORPORATION (1973)

3ALLER PG 393

Matters that qualify to be resolved in chambers are non-contentious but there are matters that
can become contentious. Here the court will order the continuation of these proceedings as if
the cause ormatter was begun by writ of summons. Remember that this is the case where the
matter was fit for chambers and at chambers an issued of fact has risen that is contentious
meaning that the court requires determination of that fact which will include examining
witnesses. Herein the court has to adjourn the matter from chambers into court so that they
can be cross –examination etc.

And the matter will proceed as if it begun by writ of summons. The power to adjourn from
chambers into court and from court into chambers is available under Order 30 R.8 of the
HCR. The power to continue the matter as if they were begun by writ is also provided for
under Order 28/8 and Order 28/9/3 of the White Book.

When the court orders that the matter begun by originating summons shall continue as if
began by writ. The court shall order that such affidavits will be treated as pleadings. Going
together with that process once the respondent see the affidavit in support they may not file
an affidavit in opposition, but file a notice to cross- exam the deponent to take the stand and
be cross-examined. The Court herein will adjourn in chambers and go in open court. Order 38
(2) of the White Book.

ORIGINATING NOTICE OF MOTION

Order 6 R.1 (1) of the HCR excerpt as otherwise provided by any law the mode of
commencement is writ of summons. The law itself will prescribe the mode of
commencement.

Motion –something is moving these matters are held in open court.

INSTANCES WHERE THE LAW PROVIDES MODE OF COMMENCEMENT VIA

ORIGINATING MOTION

1. LANDLORD AND TENANT UNDER THE RENT ACT

THE RENT ACT

The Rent Act CAP 206 V12 of the Laws of Zambia some Acts will have an application
section that is found under section 3(2) of this Act which provides that this Act shall not
apply to a dwelling house occupied by a dwelling house given to an employee as incidence of
employment……for a term certain exceeding 21 years.

Section 3 (1) this Act shall apply;

Section 3(2) the Act shall not apply to;

Example where you have been a tenant for 25 years paying on time. The tenant which
exceeds 21 years will not apply.

When you satisfy yourself that the Rent Act is applicable then go to the Rent Rules SI No.30
of 1973. Why are these rules applicable Section 15 of CAP 2. Rule No.3 says a matter under
the Rent Act…………says a complaint can be commenced by Originating notice of motion
evidence in support thereof maybe by an affidavit or viva voce. The law specifically states
how you commence such matters.

BARCLAYS BANK (Z) V. WALISKO & CO. MUHAMMED ASHROF MANSOOR

1980 ZLR pg. 7. This was a matter under the Rent Act and a plaintiff commenced by
originating summons. And by way of objection it was held that the mode of commencement
was wrong. It must have been by originating notice of motion. The court held that where an
Act of Parliament has stipulated the procedure for commencement that is the mode to be
used.

2. THE LANDLORD & TENANT (BUSINESS PREMISES) ACT CAP 193 VOL 12 of
the Laws of Zambia.

Like the Rent Act this Act has section 3 which is an application part of the Act. Shall not
apply to agricultural holdings, used exclusive for residential premises, a tenant whose tenancy
term is exceeding 21 years ………….etc.

The landlord and Tenant Business premises Rules SI No.31 of 1973. R.3 an application
made to the court under the court shall be commenced via originating notice of motion and
evidence in support will be by an affidavit or viva voce.

This Act applies to the following instances;

i. When one is arguing about Standard Rent,

ii. Notice

APPOLLO REFRIGERATION SERVICES CO.LTD V. FARMERS HOUSE LTD

(1985) ZLR PG 182. Herein the landlord commenced an action via originating notice of
motion but for reasons not stipulated by the Act. It was held that an originating notice of
motion under the law does not cover situations where the landlord sought repossession of the
said premises. It was held that an originating notice was wrong procedure because the
Landlord Act has specified situations where one can commence such action under this Act
and repossession of business premises is not one of it. The matter therefore should be
commenced by way of writ of summons.

3. CONTEMPT OF COURT (Committal Proceedings)

How do you commence an action? Commence another action in the same action under Order
52 R.3 of the White Book which states that you apply for leave first through ordinary exparte
summons, when leave is granted for you to issue contempt proceedings, you then file
originating notice of motion. It is competent to combine the provisions of Order 52 of the
White book with the provision of section 116 of the Penal Code.

GEORGE LIPMILE & ZAMBIA COMPETITION COMMISSION V. MPULUNGU

HARBOUR MANAGEMENT LTD (2008) ZLR PG. 252 Contempt is extra –territorial
jurisdiction.

The mode of commencement is via originating notice of motion.

4. COMMENCEMENT OF JUDICIAL REVIEW PROCEEDING

This is regulated via Order 53 of the White Book. Herein you first apply for leave exparte
when leave is granted then you are at liberty to file an originating notice of motion.
As general rule these are matters that should be held in open court by according to Order 53/5
(2) (a) states that the Judge may order that Judicial Review proceedings be commenced by
originating Summons.

5. APPLICATION FOR A WRIT OF HABEOUS CORPUS AD SUBJICIENDUM (you

have the body bring the body).

Order 54 of the White Book make an exparte application for leave then file an originate
notice of motion. Then the writ is directed to the Jailer the person detaining the prisoner.

A Return of the writ of habeas Corpus ad subjiciendum

JHON CHISATA V. FAUSTINO LOMBE (1981) ZLR PG 85

ANDREAS ZAKARIA CHIPANGA V. AG (1976) ZLR PG 224

PETITION

Order 6 R.1. (3)

At the time the Case of FELIYA KACHASU (1967) was commenced the then Order 7. R.1C
provided that any matter where the law did not provide for mode of commencement was to be
commenced via originating notice of motion.

Those rules provided that if you wanted to approach the infringement of the Bill of Rights
you use an originating notice of motion.

The 1973 Constitution still maintained sub paragraph 7 to make rules for the commencement.

The protection of fundamental rights rules 1969 were promulgated by SI 156 of 1969
pursuant to article 28(7) of the constitution which provided the making of the rules. Those
rules provided that if you wanted to enforce your rights under the PART III of the
constitution you had to approach the High court via a Petition.

Therefore the mode of commencement under part III of the constitution is via petition.

NKAKA CHISANGA NKUTA (1982) ZLRpg. 80 – this is the leading case on the mode of
commencement under part III. You do not go by way of Judicial Review it is via petition.

MATILDA MUTALE V. EMANUEL MUNAIELI JUDGEMENT NO. 14 OF 2007.

How do you challenge an election for a Member of Parliament?

1. By a Petition? Where

Article 73 of the constitution you petition the High Court and an appeal to the constitutional
court.

When a returning officer announces a result of a duly elected MP, you use a petition to
challenge that announcement.
For a petition your client has to sign it and not counsel. A petition is not a pleading that is
why counsel is proscribed from signing a petition. This is not curable i.e. where an advocate
signs instead of the client that is the end of the case.

How do you challenge a Presidential Election result?

Article 103 of the Constitution provides that you petition the Constitutional Court as a court
first and last instance. How many possible challenges are there for presidential election
petition? TWO

1. At presidential nomination stage

2. During the initial ballot i.e. where one does not pass 50 plus one. Anyone can challenge
the initial ballot by way of petition.

Challenge of election of a councillor?Article 159 of the constitution Local government

elections tribunal appeal is to the constitutional court.

Companies Act CAP 388 V0L 21 of the Laws of Zambia

Section 271 and 272 of the CA winding up of a company is done by presenting a petition.
You present a petition. The Companies Act must be read together with the Companies
(winding Up) Rules 2004 SI No. 86 0f 2004.

And Practice Direction No.3 issued at Lusaka on the 11th day of October 1960. Which states
that Petitions for winding up of companies: Attention of practitioners is drawn to the
following practice procedure to be adopted in presenting a petition for winding up a company

1. A petition shall include in a prayer a request to appoint a named person

The petition shall contain a request of an appointment of named person to be appointed as a

liquidator or provisional liquidator and determination of the court if there is need for security
for such.Once a provisional liquidator is appointed the court should within 3 days issue an
interparte returnable date to either confirm , vary or remove a provisional liquidator.

2. An affidavit of fitness and written consent to act as a liquidator should be filled.

When can you present a petition to wind up?

Section 271 and 272 will show you who has locus standi to present a petition.

1. One instance is where a deadlock that is where the shareholders cannot agree; herein you
can petition on account of deadlock the leading case is TOWNAP TEXTILES ZAMBIA
LTD & ANOTHER V TATA ZAMBIA LTD (1988-89) ZLR PG 93. This case discusses
deadlock.

The NGO Act No 16.of 2009, which required NGO to statutory registration i.e. If you are
company register at PACRA and also register with the Registrar of NGO. If you are club
register with Registrar of Societies and Registrar of NGOs. If a trustee incorporated at the
Ministry of Lands and Register with NGOs. This was regulating civic education. It was
argued that that Act offend the provisions of Part III of the constitution. They challenged this
law by way of Petition.

Bankruptcy proceeding yougo by way of petition that is under part II of the Bankruptcy Act
CAP 82 V0l 6 of the laws of Zambia.

Section 13(2) of the Legal Practitioner’s Act Chapter 30 V0L 4 of the Laws of Zambia.
Where one passes Ziale you use a petition to apply.

A dispute may arise as to the outcome of a referendum, I would like to challenge that result,
you commence by way of a petition i.e. part III of the Referendum Act CAP 14 V0L 2 of the
laws of Zambia in particular section 13.

Article 79 Persons who are eligible to vote.

APPEAL

Appeal as a mode of commencement: This means starting a case by way of appeal.

Originating process by way of an appeal.

Lands Tribunal: NEWPLAST INDUSTRIES V. THE COMMISSIONER OF LANDS

& AG (2001) ZLR PG 51 this is the case about rectifying the Register at the Lands Tribunal,
the Register refused to rectify the Register. Counsel decided to invoke judicial review for
issuance of prerogative writs like certiorari and mandamus. It was held that judicial review
was wrong commencement hence the court had no jurisdiction. The right procedure under the
Law was by way of an appeal. Section 87 & 89 of the Lands Tribunal Registry Act says you
complain by way of an appeal to the High Court.

Section 4 (1) of the Lands Tribunal Act No. 39 of 2010 gives the Tribunal power to rectify
the register. So you chose to either go to the Tribunal or the High Court. Because there is
concurrent jurisdiction between the Lands Tribunal or the High court. The Lands Tribunal is
quicker and cheaper on the other hand the high court gives you more leeway.

If you go to the High court you go by way of appeal. But according to section 13 of the High
Court Act going to the High Court gives you more remedies than the Lands Tribunal.

Cadastral plans dealing with mining rights: Mining licences if you are turned down how
do you approach the High Court it is by way of Appeal Section 153 (1) of the Mines and
Mineral Act No.7 of 2008? (There could be new one but the provision has been maintained.)

Passports: You apply for a passport and they decline to issue you a passport. You approach
the High Court by way of appeal section 9(4) of the Passport Act No.22 of 2003.

Stock Exchange: A listed companySection 26 of the Securities Act says that you approach
the High Court by way of appeal.
PLEADINGS

You are a pleader that is why it is called pleadings.

STATEMENT OF CLAIM

DEFENCE

REPLY

COUNTERCLAIM

DEFENCE TO COUNTER CLAIM

PLEADINGS SUBSEQUENT Thereto

A general writ of summons is not pleadings

A petition is not a pleading

Summons or interlocutory applications

Originating summons are not pleadings

Affidavits are not pleadings

ORDER 18 OF THE WHITE BOOK

NB: Identify the parties that is important in the exam

STATEMENT OF CLAIM or Reply

Numbering order 18 of the White Book, the numbering has to be consecutive.

You draw one pleading as in defence and counterclaim- where it is a set off and
counterclaim.

DEFENCE AND COUNTERCLAIM

DEFENCE

1.

2.

3.

4.

COUNTERCLAIM
5.

6.

7.

8.

REPLY AND DEFENCE TO COUNTERCLAIM

Order 18/4 No pleading subsequent to a reply ………shall be served excerpt with the leave of
court.

Statement of claim – defence – reply

Where the defendant raises a counterclaim the defendant is

Plaintiff the reply and counterclaim…

Rejoinder – prepare an exparte application and affidavit. In your affidavit you exhibit a
rejoinder with a space for a Judge to iniatial ….( subsequent pleadings). Once leave is
granted you file the rejoinder.

STATEMENT OF CLAIM

Order 18/8?? certain matters must be pleaded in specific terms:

Special Damages _ Attorney General v. DG Mbundu 1984 ZLR PG 6

Appeal from the DR on assessment goes straight to the Supreme Court.

Special damages must be pleaded in the statement of calim.

Swap Milling?? v. Chileshe and Others _ mental anguish you must plead in special form. It
was held that ………..
How do you present the Mbundu type of damage? Must be specifically.

Order 18/7 (a) of the White Book provides for pleading of convictions.

Section 11 of the Civil Evidence Act 1968

The case of saderSiwingwe (being Personal Representative of the Deceased Unal) v. Jairus
Phiri. (1975)

Here there was a claim for damages arising from a road traffic accident. It was argued that
since there is a lacuna in our law, we look to the law of England and held that a previous
conviction in a Road…

Kabwe Transport Co. Ltd V. Press Transport (1975) LTD theaguement of conviction came
up and the lawyer relied on Order 18/7 (a) that previuos conviction are admitted into
evidence. Here the Court refused this position and stated that there was no Lacuna in our
Evidence Act and the Court held that previous conviction are not relied upon in evidence in
Zambia.

Kabwe transport Manfred Kabangwe?? & V. Joseph .. 1990-92 ZLR pg 145

RUTH KUBI V. ROBINSON

The gist is that the white book has become part of our law

The English law (extent of application) amendment Act of 2011

The HC (Amendment) Act No. 7 of 2011

The SC (Amendment) Act No. 8 of 2011

Bernard Chitambo