(2019) Approved Module - L331 Moot Court 4

The University of Zambia
in association with
ZCAS University
BACHELOR OF COMMERCIAL LAW
L331 MOOT COURT

MODULE GUIDE
LLB COMMERCIAL/GENERIC
Year 3
Author: Chaponga Nguluwe

Copyright
ALL RIGHTS RESERVED

No part of this publication may be reproduced, stored in a retrieval
system, or transmitted in any form or by any means, electronic or mechanical,
including photocopying, recording or otherwise without the permission of the
Zambia Centre for Accountancy Studies.
i|Page
TABLE OF CONTENTS
ALL RIGHTS RESERVED.......................................................................................................i

1.0 INTRODUCTION..........................................................................................................1
1.1 MODULE AIM..............................................................................................................1
1.2 OBJECTIVES.................................................................................................................1
1.3 ASSESSMENT DETAILS.............................................................................................2
1.4 READINGS....................................................................................................................2
Prescribed Reading................................................................................................................2
Recommended Reading.........................................................................................................2
1.5 TIME FRAME.....................................................................................................................2
1.6 STUDY SKILLS.................................................................................................................3
1.7 NEED HELP?......................................................................................................................3
2.0 UNIT ONE: Introduction................................................................................................5
2.1 INTRODUCTION...........................................................................................................5
2.2 AIM..................................................................................................................................5
2.3 OBJECTIVES..................................................................................................................5
2.4 TIME REQUIRED...........................................................................................................6
2.5 REFLECTION.................................................................................................................6
2.6 What is moot court?.........................................................................................................6
2.7 Identification of grounds................................................................................................11
..............................................................................................................................................11
2.8 Arguments......................................................................................................................14
Legal reasoning....................................................................................................................16
2.9 Research.........................................................................................................................17
2.10 ACTIVITIES................................................................................................................21
See portal for activities to be carried out.............................................................................21
2.11 SUMMARY.................................................................................................................21
3.0 UNIT TWO: Court Room Ethics.................................................................................22
3.1 INTRODUCTION.........................................................................................................22
3.2 AIM................................................................................................................................23
3.3 OBJECTIVES................................................................................................................23
3.4 TIME REQUIRED.........................................................................................................23
ii | P a g e
3.5 REFLECTION...............................................................................................................23
3.6 Appropriate court dress.................................................................................................23
3.9 ACTIVITIES..................................................................................................................31
3.10 SUMMARY.................................................................................................................31
4. UNIT Three: Oral Arguments...........................................................................................32
4.1 INTRODUCTION.........................................................................................................32
4.2 AIM................................................................................................................................32
4.3 OBJECTIVES................................................................................................................33
4.4 TIME REQUIRED.........................................................................................................33
4.5 REFLECTION...............................................................................................................33
4.6 Oral presentations..........................................................................................................33
4.7 Referring to the written briefs during the oral presentation...........................................37
4.8 Referring to authorities in oral submissions.............................................................38
4.9 Responding to question.............................................................................................39
4.10 Objections.................................................................................................................39
4.11 ACTIVITIES................................................................................................................40
Go to the ZCAS E-Learning Portal (www.zcas.ac.zm/elearning).......................................40
4.12 SUMMARY.................................................................................................................40
5 UNIT FOUR: Written Arguments....................................................................................41
5.1 INTRODUCTION.........................................................................................................41
5.2 AIM................................................................................................................................41
5.3 OBJECTIVES................................................................................................................42
5.4 TIME REQUIRED.........................................................................................................42
5.5 REFLECTION...............................................................................................................42
5.6 What is a memorial brief?..............................................................................................42
5.7 Format of the brief.........................................................................................................46
5.7.1 Cover page...............................................................................................................46
5.7.2 Index........................................................................................................................48
5.7.3 List of authorities.....................................................................................................49
5.7.4 Record of Proceedings.............................................................................................51
5.7.5 Memorandum of appeal/response...........................................................................53
5.7.6 Heads of argument...................................................................................................54
5.9 ACTIVITIES..................................................................................................................57
Go to the ZCAS E-Learning Portal (www.zcas.ac.zm/elearning).......................................57
iii | P a g e
5.10 SUMMARY.................................................................................................................57
6.0 Appendix............................................................................................................................59
iv | P a g e
1.0 INTRODUCTION
So, you are about to embark on you moot court journey. Moot court is one of the
more practical courses that you ever undertake as a law student. It is both
challenging and exciting and is one of the most rewarding experiences that any law student
with go through. Through this course you will learn new skills and improve others that you
may already have at your disposal. The key to moot court is confidence and preparing for the
unforeseen and always makes sure you are ready to think on your feet.
Figure 1 Courtesy of Bing Search
1.1 MODULE AIM
The course introduces the students to moot court and prepares them for the
simulation and mock trials that they will have to participate in both at midyear
level and final level. Secondly, to introduce students to the skills of appellate oral
presentation argument and drafting.
1.2 OBJECTIVES
By the end of the course, students should be able to:
a) demonstrate skills in oral arguments

b) demonstrate skill in legal research
1|Page
c) demonstrate skills in writing legal briefs
d) successfully conduct mock oral argument in appeal court
1.3 ASSESSMENT DETAILS
 Continuous assessment
30%
 Mid semester moot 30%
 Final examinations 70%

 Total 100%
1.4 READINGS
Prescribed Reading
 Fox, M and Bell, C., (1999), Learning Legal Skills, Glasgow:

Bell & Bain Limited
 Munalula, M.M, (2004) Legal Process: Zambian Cases,
Legislation and Commentaries, Lusaka: UNZA Press
Recommended Reading
 Shaw, N., (1996), Effective Advocacy, London: Sweet & Maxwell
 Berganman, P., (2006), Trial Advocacy in a Nutshell, 4th Edition, St.

Paul Minnesota: Thomson West
2|Page
1.5 TIME FRAME
You are expected to spend at least 80-100 hours on this module guide in total.
At least 1 hour on the exercises provided and two weeks on the preparation of
briefs
 There are four main unites and each. Each component will require a minimum
of 15 hours’ study time
1.6 STUDY SKILLS
For you to be able successfully complete this module, you need do the following:
 Read and work through each component required with enough time to spare. Make
sure you plan accordingly
 Ensure you have a law dictionary with you to check on meanings of words you do not
understand
 Ensure you complete the exercises you are provided and any consolidation work that
may be provided
 Practice making oral presentation without looking at notes
 Do not miss out on any component as it is vital that you complete all of them
1.7 NEED HELP?
If you need help on the module, please use the following contacts:
Course Tutor
Email: Chaponga.nguluwe@zcas.edu.zm
Zambia Centre for Accountancy Studies (ZCAS)
Dedan Kimathi Road, P O Box 35243, Lusaka, Zambia
3|Page
Tel: +260 1 232093/5, Fax: +260 1 222542
4|Page
2.0 UNIT ONE: Introduction
Welcome. The following module aims to give you a detailed outline of what mooting is all
about. I have included several links and references for you if you are interested in finding
out a little more about mooting
A moot court is a simulation of a real court to give students an insight on dealing with a legal
problem and how to present a case in front of judge or panel of judges. These proceedings are
in a court room and will follow a set pattern of conduct. Right from the attire to the language
and the way we speak and behave follows a specific norm1.
Moot court is an art form in itself in the sense that it requires the student to present their oral
submission in a manner that is going to convince the judges that the student knows
practically everything possible about the case in front of them2.
The course is set up in a manner that will assist the student prepare and hone the skills that
will allow the student to successfully carry out both the legal research and oral presentation.
2.1 INTRODUCTION
 In this first unit you are going to learn what moot court is all about and
focus on developing the skills required to identify the required presentation
grounds.
2.2 AIM
 develop the skill of identifying the grounds/heads of arguments

 Learn what arguments are
 How to carry out legal research
2.3 OBJECTIVES
1
Hill, Jeffrey. A Practical Guide to Mooting. Basingstoke, Hampshire: Palgrave Macmillan, 2009.
2
ibid
5|Page
At the end of this unit you should be able to do the following
 Identify the correct grounds for each argument
 Know what legal arguments are
 Know how to carry out legal research
2.4 TIME REQUIRED
6 Hours reading time
4 Hours tasks and exercise time
2.5 REFLECTION
See portal for relevant reflective tasks to be carried out at the end of each
session.
6|Page
2.6 What is moot court?
Figure 2Courtesy of Bing Search
Moot courts have been around since the late 1700s. They're a law school activity and
competition during which students participate in preparing and arguing cases in front of
judges. The case and sides are selected beforehand, and students are given a set amount of
time to prepare for the eventual trial usually you will be give about two to three weeks at the
most to prepare for this3.
There is no one exact definition for what court is however what you will see or come across
is similar in the sense that it’s all about mock trials taking place either for assessment
purposes or examination purposes.
A moot court is a simulation of a real court to give students an insight on dealing with a legal
problem and how to present a case in front of judge or panel of judges. These proceedings are
in a court room and will follow a set pattern of conduct. Right from the attire to the language
and the way we speak and behave follows a specific norm.
practically everything possible about the case in front of them. Mooting is an excellent skill
to learn, and it will assist you to think and analyse the law in the style of an advocate -
looking for loose threads, analysing legal logic and presenting your conclusions in a sensible
3
Oxford University Moot Web-Portal
7|Page
and effective manner. Taking part in the Moot will certainly help you improve your written
and oral communication skills. There are many other skills that you will pick up as a result of
taking this course that will be applicable in other areas of law that you will encounter.
Mooting is done with two teams of two or more people competing, one person from each
team takes a leading/senior role and the other being the junior. There will also be a panel of
judges and someone timing you. This will usually be done by the court appointed marshal
who is responsible for all procedural guidance and direction within the court.
Moot court participants are required to research their respective sides, write appellate briefs,
and present oral arguments in front of the judges. Oral argument is typically the only chance
a lawyer has in an appellate court to verbally argue his case in person to a panel of judges, so
moot court can be a great proving ground. Judges are free to ask questions at any time during
the presentation, and students must respond accordingly. A profound understanding of the
facts of the case, the students' arguments, and their opponents' arguments are required.
This statement cannot be underestimated and reiterated enough.
You as the student will participate in two moot court session where you shall be examined.
This will be the mid semester moot exam and then the final moot court exam. The structure
of a typical ZCAS moot is as follows:
 Students will participate in teams of no less than two students who present oral
arguments in each round of the competition. One student will be known as the Senior
Counsel and one as the Junior Counsel, though these titles are meaningless for the
moot except that the Senior Counsel speaks first.
 Each team is presented with a problem to prepare based on a hypothetical factual

scenario. Before the oral arguments, each side will need to prepare short written
outlines of submissions called briefs.
 The teams present their arguments in front of the fictional court within the ZCAS
campus. This is a court of unlimited jurisdiction and is bound by not decisions except
its own. All decisions from other jurisdictions such as England, Canada and Australia
are only of persuasive value.
8|Page
 The maximum time allocated for submission from each team is 30 minutes for which
each team has to decide how that time will be allocated amongst them. It is split up
according to grounds
 Teams are graded according to the moot court rules that will be provided to the
students prior to the moot court assessment, however organisation, persuasiveness,
ingenuity and full knowledge of the facts and the law will be taken into consideration
when marks are awarded
Why is moot court important and why you should take it very seriously?
Law firms, love students who have participated in moot court. Why? Because they've already
spent many hours perfecting the analytical, research, and writing skills that practicing
lawyers need to have. When you have moot court on your resume, a prospective employer
knows that you've been learning to form and communicate legal arguments for a year or
more. If you've already spent a lot of time in law school on these tasks, that's less time the
firm will have to invest in training you and more time you can spend practicing law.
Even if you're not going to be a practicing lawyer,moot court can be quite useful. You'll
become increasingly more comfortable formulating arguments and expressing them in front
of others. If you feel that your public speaking skills need some work, moot court is a great
place to hone them. On a more personal level, participating in moot court can also provide a
unique bonding experience for you and your team and give you a mini-support system during
law school.
In other words by the end of this course you will be more prepared to make general
presentations as well as oral and written legal submissions. The key element to develop is
confidence as this is half the task.
This module guide has been prepared with the aim of answering some of the basic questions
most people have when they first try their hands at mooting, and attempting to give some
guidance as to how mooters can improve. This guide has been prepared with its primary
9|Page
focus upon helping students to develop their advocacy techniques, and is based around the
rules and style of the moot assessment.
Key pointers to be aware of or best practice
 It is critical to engage with the bench. This requires you to bring many skills together
including maintaining eye contact with the judges, speaking at an appropriate volume
and pace, responding directly and accurately to questions and holding the judge’s
interest. It also incorporates a cardinal rule of mooting: never, ever talk while the
judge is talking. EVER!!!!!
 Remember that it is accepted to ask a judge to repeat a question if you do not

understand it, and that it is always best to say 'I regret I am unable to assist your
Lordship/Ladyship on that point' when you really do not know the answer. Never
mislead a judge or the court by assuming what answer might be. Concede the point if
you have to. There is no shame in not knowing the answer however this does not
mean you have this option at every single opportunity. Ingenuity is essential, and
thinking on your feet can lead to better grades.
 Mooting is not just about presenting propositions of law to the court. An important
aspect is applying those propositions to the facts in order to argue for the result you
want. You should be very familiar with the moot problem and be able to take the
judge to relevant paragraphs in it.
 You will often make extensive use of authority in delivering your submissions. You
need to know what principle a given case stands for and if a case is binding on the
court before which the moot is being argued.
 A critical aspect of mooting is time management. You need to be able to expand or

contract your submissions depending on how interventionist the judges are4.
Think point!!!- What skills do you think you will need to improve or develop in order to
successfully moot?
10 common terminology phrases you will come across in this course
Supreme Court and House of Lords opinion

4
10 | P a g e
This case is different
Submissions/ my/ our
Authority
Bundles
My learned friends/The opposing counsel
Thank you My Lords/Lordships/Lady/Ladyship/I’m grateful
Apologies My Lord
Much obliged
This case is distinguished
2.7 Identification of grounds
A quick search of the definition of the term “grounds” you will discover that more often than
not,
“Grounds are more than simply reasons for wanting a court to order relief. They are the reas
ons specified by the law that willserve as a basis for demanding relief”
These four questions below might be something you ask you self when trying to identify you
grounds.
What are my Legal arguments? What are my Factual arguments?
Are they clearly defined at the end of the Do I have to deduce them from the facts?
facts?
11 | P a g e
In other words ground are the valid reasons that you the appealing/opposing counsel will use
to make your arguments to the court and seek to prove that the previous court below made a
mistake or an error either in fact or in law when they made their decision.
At the very start of moot court one of the essential tasks is to correctly identify the ground on
which you will base your submissions. This is the building blocks of your argument and what
you need to do is be able determine the approach that will be the most appropriate to tackle
the case that is in front of you. If you have not identified the ground correctly it means that
your entire argument or development of you argument will not be valid and you will not do
the right thing.
A moot problem is always based in facts. The aim of a moot is not merely to present a legal
dissertation to the judges, but to explain what the result should be when the law is applied to
the facts of a particular case. Therefore, it is important to be aware of exactly what the facts
of your moot problem are. Rechecking the facts often will be an important part of any
preparation, but to begin with, you will almost certainly be reading the facts to identify the
applicable law and the likely legal issues.
This is why you shall find yourself spending a lot of time trying to figure out exactly what
the right heads of arguments are going to be. It is not the easiest of tasks to accomplish
especially when they have not been clearly stated or elaborated upon.
12 | P a g e
Given the fact that you’ll be working as part of a team, it will also be essential to divide the
material at some stage between yourself and your team mates. As there is only a short
amount of time to prepare for each moot, it may be easier if the decision to split the material
is made sooner rather than later, so that there is more time to focus on the particular section
that you’ll be dealing with.
Whist most of the times your grounds will be clearly stated in the case study that you have
been provided with at the very end of the case facts. These are usually split up into two or
three ground which will be the focus of you mooting presentation and legal preparation. In
some instance however, the grounds maybe not be listed no clarified at the end of the facts
but they will be imbedded in the facts that you will have be provided with. If that is the case
then you will have to pick them out and state what they are.
As there are two teams that take part in the mooting session there are only two options
available to you one you know that the grounds are, you will either be appealing to the court
based on the grounds that you have or you shall be reaffirm the finding of the court below
that made the original decision. Therefore it is essential that both sides know what each
other’s grounds are going to be as this is paramount to the respondents performance.
The way you will approach your ground is key to the success that you will be looking for.
One method that is often helpful is to students to do some general reading first, then to split
13 | P a g e
up the topics and have each student do specific research. Once each student has prepared a
draft research paper, outlining the law in their area, the students can swap. Each student will
then work on a new area and build on the existing draft research papers. It is essential that
time spent on moot preparation is productive and not wasted. A division of responsibilities
between team members to fully utilise the limited time available is recommended.
Once you have done this then you can start thinking about how to combine all your work as a
single piece of work from one team, it’s always a good thing when all team members know
each other’s areas of the arguments that each has researched. A good team supports each
member equally in a team and know each other grounds even though they might not be the
one to argue it.
Once you have fully established the required grounds and identified them correctly make
sure you present them in the easiest English possible so that the judges are able to clearly see
the arguments that you are going to be presenting in front them if you can do this then you
will have successfully conquered the first part of moot which is identifying the grounds.
TIP!!! Keep grounds short and simple use punchy and key word so that you capture the
judges’ attention
14 | P a g e
2.8 Arguments
Arguments are what mooting is all about and it essential that one presents the right content
but more importantly the right argument will make you mooting experience a lot easier and
more directed when it comes to the work and research that has to be done. Both sides have to
present passionate arguments to the panel of judges and these from a major part of your
scoring. At the end of the day there will be an argument presented by the appellants which
will start the mooting session before the respondents submit their arguments5.
Cicero defines arguments as “probable reason proposed in order to induce belief” in law we
can look at the law dictionary which define an argument as; “In rhetoric and logic, an
inference drawn from premises, the truth of which is Indisputable, or at least highly probable.
The argument of a demurrer, special case, appeal, or other proceeding involving a question of
law, consists of the speeches of the opposed counsel; namely, the “opening” of the counsel
having the right to begin, (q. v.,) the speech of his opponent, and the “‘reply” of the first
counsel. It answers to the trial of a question of fact….the submission of printed briefs may
technically constitute an argument according to Msilcomh v. Hamill6.
5
6
65 How. Prac. (X. Y.) 500; and See also State v. California Min. Co., 13 Nev. 209.
15 | P a g e
In simple terms an argument is a form of expression consisting of a coherent set of
reasons presenting or supporting a point of view; a series of reasons given for or against
a matter under discussion that is intended to convince or persuade the listener.
There are 5 different types of argument that most law students will encounter – these are
 Text
 Intent
 Precedent
 Tradition
 Policy
The legal philosopher H.L.A. Hart said that underlying the law are “rules of recognition” –
rules that govern what “counts” as law. The five types of legal arguments operate as rules of
recognition. Judges and lawyers recognize arguments based upon text, intent, precedent,
tradition, and policy as being legitimate forms of legal argument. This is something that may
not be obvious to most students but it is something that no doubt you will have tapped in on.
By virtue of the fact the arguments differ it means that even the source material for
information and the structure or ways in which it will be presented will differ.
Each different type of argument draws on different sources of information and has a different
structure. Each type of argument has characteristic strengths and weaknesses, and may be
16 | P a g e
attacked or evaluated in different ways. When it comes you prepping for mooting you will
see that you will create and utilize more than one type of arguments.
To prove a question of fact, lawyers call witnesses and introduce exhibits. To prove a
question of law, lawyers create valid legal arguments, drawing on legal text, intent,
precedent, traditions, and policy. The different legitimate types of legal argument are the
“data” that lawyers use to prove what the law is. You will need to use some of these when
you are mooting.
As a student you must also master certain intellectual skills, and the theory of the Five Types
of Legal Arguments can help with that. As students of the law, understanding the different
types of arguments helps us to analyze difficult legal problems. If you can identify what type
of argument you are preparing for when mooting, then you have taken the first step towards
identifying the strengths and weaknesses of that particular argument.
The five types of legal arguments are primary sources of evidence of what the law is. All
other materials are secondary sources of law. Secondary sources about the law include legal
treatises, textbooks, legal encyclopedias, articles, essays, and study aids. Some legal treatises
are very influential – but they are not law by themselves. Instead they cite the law.
Remember, whichever argument type you are working on you need to keep things as simple
as possible and always use layman’s language. Keeping it simple helps to make sure that
there is little to no confusion caused at all for all parties involved.
Legal reasoning
Good legal reasoning requires logical argument. One form of logical argument is syllogism.
In syllogistic reasoning, one proposition is deduced from two or more others. The proposition
that is deduced is the conclusion and the statements from which it is inferred, or derived, are
called premises.
In legal arguments, the first premise (sometimes known as the major premise) is generally a
statement of law. In order to find the major premise, you need to look in the judgment for
abstract statements of legal rules. You then need to uncover the minor premises. These are
statements of facts which the judge considers relevant to the conclusion drawn.
The judge’s conclusion draws together the general statement of law with the statement of fact
and, therefore, explains how the general rule applies to the particular facts. This is known as
17 | P a g e
applying the law to the facts and is an essential part of legal reasoning. The steps in legal
reasoning can be broken down as in the illustration below.
Figure 7 Courtesy of Oxford University Press
An good understanding of legal reasoning is essential to you success in moot court the better
the reasoning of the case presented to you the more you will show off your legal knowledge
and the understanding of the law that is in front of you.
Think Point!!!! Why do you think it’s important to develop the skills of legal reasoning?
2.9 Research
This is the one of the more challenging aspects of the moot court preparation this is the crux
of your mooting sessions that you would have been going through all semester. There are a
variety of skills that are required for you to carry out your legal research successfully.
In developing the case that you shall be presenting to the panel, jurisdictional issues should
be kept in mind –
 the power of the Court to hear the case; and

 the power of the Court to make some specific orders if you are going to be seeking
any.
Jurisdictional issues are especially important in assessment moots as well as completions

moots, which are often based on problems of international law and heard before courts such
18 | P a g e
as the International Court of Justice. However most of the time you will get a local case that
will be heard in the local courts. If necessary, students should consult the relevant statute
governing the court that is the forum for their moot topic and also procedural rules
Remember that at an appellate level the focus is on the decision that has been made by the
lower court supported by reasons, and whether that decision is right or wrong.
Having isolated the issues and thoroughly researched the relevant areas of the law, the
argument for presentation to the court must be formulated. This must be logical and must
blend to form a coherent whole. Inconsistencies and lack of coherence in the arguments of
team members that emerge at a moot hearing are indicative of lack of consultation and lack
of thorough preparation. In addition, relevance and reasoning are of the utmost importance. A
case that concentrates on establishing and developing one or two sound and relevant lines of
argument is invariably more persuasive than one which relies on a number of points, some
weak and insubstantial.
Each team member must at all times be able to demonstrate a complete mastery of the facts
of the case, not just his or her part of it. This is essential – a team member may be suddenly
taken ill and therefore unable to appear or a judge may insist that one team member deal with
submissions that the other member is supposed to be making. Complete mastery means that
each fact can be instantly recalled. You should concentrate on establishing sound
propositions in support of the argument by applying relevant legal rules and principles raised
by the issues. It is very easy to become smothered in a morass of case authorities and
conflicting dicta.
Complete research is paramount to surviving moot court, there are no particular ways in
which one can do research each time must find the best method that suits them but a
suggested approach is being suggested below. Once you have a basic understanding of the
19 | P a g e
topic, your next task will be to do some preliminary research to hone your knowledge of the
relevant law. This can be a difficult process, particularly where it is not clear exactly what the
legal issues are, but persistence and analysis are all that are needed to overcome this first
hurdle.
Step one
General reading - here the legal issues are not immediately obvious; you may have to do
some further general reading in the particular area of law. Try textbooks that relate to the
broad area of law you are looking at. If you look up issues you have identified as relevant in
the topic in the index of a general text, this can be the doorway to many more sources.
Additionally, electronic databases (CAS Legal) offered by the university library offer a
commentary on the law and refer to the most important cases. Even if you’ve already
determined the applicable legal issues, such general sources will be very valuable in giving
you a broad overview, and helping you to narrow your field of research. Beyond general
reading, your next points of departure will be scholarly commentary and of course, case law.
Step two
Scholarly Commentary It is always useful to read some commentary on the law, so that you
are aware of the current debates surrounding that area. Commentary can point you in the
direction of the latest research and case law. Law Journals are useful for this. Check Westlaw
and LexisNexus.
Step three
Relevant cases finally, your most important part of mooting will be reading the relevant
cases. Sometimes a list of relevant cases will be provided with the moot problem, other times
you may have to look for case law on your own. A way to find cases with similar principles
to your question is to enter some of the facts of your scenario into the search engine of one of
the available databases or websites.
20 | P a g e
You will also find that any general reading or legal commentary will probably have produced
a number of important cases for you to follow-up. In your research, you will be looking for
all the cases that will be applicable to your particular area of law, regardless of whether they
support or detract from your case. It is very important to keep in mind that even if a case
appears to be very detrimental for you, that you will almost certainly need to distinguish it
from the facts in your problem, rather than attempting to pretend that the case does not exist.
You can be sure that your participants will want to use any detrimental cases against you, so
it is important to be on top of the facts of all cases that relate to the moot. In particular, you
will be looking for cases that have very similar facts to your own, or cases which have been
very important in laying down the law in a particular area, which you will attempt to extend
to your own case.
You need to know the facts of the case and always offer them to the judge to show that you
already know what the facts inside out and that irrespective of the questions in relation to the
facts of the case that you will receive you will be able to answer them.
21 | P a g e
Step 4
Consolidate and draft- once you have looked through and read through the case facts, text
books and relevant case law you can then begin to consolidate and build your written
submission and start working on the oral mastery of you arguments.
2.10 ACTIVITIES
See portal for activities to be carried out.
2.11 SUMMARY
A moot court is a simulation of a real court to give students an insight on

dealing with a legal problem and how to present a case in front of judge or
panel of judges. These proceedings are in a court room and will follow a set
pattern of conduct. Right from the attire to the language and the way we speak and behave
follows a specific norm.
practically everything possible about the case in front of them.
This guide has been prepared with the simple aim of answering some of the basic questions
most people have when they first try their hands at mooting, and attempting to give some
guidance as to how mooters can improve. This guide has been prepared with its primary
focus upon helping students to develop their advocacy techniques, and is based around the
rules and style moot.
22 | P a g e
3.0 UNIT TWO: Court Room Ethics
3.1 INTRODUCTION
There is much literature available on court etiquette and a variety of meanings

given to the expression. This section discusses court etiquette in the context of the
standard of behaviour expected of legal practitioners when working in the court precinct, and
will not cover professional duties as outlined in the legal practioners guide. As for ZCAS
moot court assessment it is the ZCAS University Moot Rules that will dictate what is
expected of you. When at moot court, legal practitioners/students are expected to behave in a
manner supportive of the solemnity of the court’s position.
There is an expectation for men to always wear a jacket and a tie when they appear in court.
On occasion, when the weather is excessively hot, a Magistrate/Judge may give leave for
jackets to be removed. Women are expected to attend court wearing the equivalent of office
attire.
23 | P a g e
3.2 AIM
 to be introduced to appropriate dress code

 Learn the correct way to address the court
 Learn the courtesy you are expected to display in court
3.3 OBJECTIVES
 You will be able to know what appropriate dress code is for lawyers
 Be able to address the court correctly
 Know the courtesy that is expected
3.4 TIME REQUIRED
6 hours of reading time
4 hours of exercises and tasks
3.5 REFLECTION
Go to the ZCAS E-Learning Portal (www.zcas.ac.zm/elearning) and

carry out the designated tasks and exercise
24 | P a g e
3.6 Appropriate court dress
Appearance is everything in court. Inappropriate dress will lead to you not being seen by the
court meaning that before you have even had the chance to present you submissions you will
be required change.
Lawyers are expected to be well-groomed when arriving at the office or the courtroom.
In regards to hairstyle, men are expected to maintain shorter hairstyles that are neat and
conservative in style. Facial hair is acceptable as long as it is well groomed. Arriving to work
with wild long hair or rugged facial hair would be inappropriate therefore the same principle
will apply even when you are partaking in moot court.
For women, both long and short hairstyles are acceptable. As long as the style is neat and
professional, there won’t be a problem. Arriving with untamed, messy styles or brightly
coloured hair may cause alarm. Also, some limitations may include having hair longer than
their waist and child-like hairstyles.
Remember, etiquette is essential for making a good impression. This is especially true in the
courtroom, where there are many stated, and unstated, rules of conduct for litigants,
attorneys, jurors, and other attendees.
Legal professionals begin their lessons on the fine points of courtroom etiquette during their
education. It is in their legal studies they can learn about the professional requirements of
their careers
Counsel should dress formally for appearances in a courtroom. For a moot, students
generally tend to wear suits though this does not mean that you should buy something special
for the moot! It is more important to look neat and tidy than to be wearing an expensive suit.
As for accessories, though this may apply more to women than men, but there are a few dress
codes considerations regarding accessories. For women, jewellery and accessories are
acceptable if they are not in excess or too extravagant. Alternatively, wearing cheap
jewellery may be frowned upon.
For women wearing strong perfumes are discouraged, too much makeup or revealing under
garments or tattoos, and long nails should be avoided. For men, having professional looking
tie clips and pins may be suitable for their attire. Wearing a professional watch would be
25 | P a g e
acceptable. Wearing too much jewellery, excessive cologne, or revealing tattoos should be
avoided.
Summary of dress codes to be observed
Male students Female students
 Formal Business Dress Code: Law  The dress code for female law
students should wear a white dress students is a bit more complex. In the
shirt which a neutral collared tie history of legal work, women were
beneath their tailored suit. Common predominantly providing legal
suit colours include grey or black. support and not working on legal
cases. However, recent years has seen
 Lawyers and students alike should an increase in female lawyers which
remember to wear appropriate shoes. has led to some controversy over
26 | P a g e
Leather dress shoes are the legal what a woman should and should not
industry’s standard that can be paired be wearing.
with black, brown, dark grey or navy
socks depending on the suit colour.  These garments are often forbidden
Loafers may also be acceptable in by a courts dress code and they
casual days. include:
 Tight fitting and low cut tops of any

kind
 Shirts with straps, open backs, halter
tops.
 Stretch pants, yoga style pants.
 Miniskirts and capris that end above
the knee
 As a general rule of thumb, female
lawyers should avoid showing any
cleavage and revealing too much leg.
 To keep things simple, female’s law

student and lawyers should follow
similar guidelines that define male
lawyer’s dress codes. Expect to wear
suits in similar styles and made to fit,
as an alternative skirts can be worn so
long as they are not too short.
27 | P a g e
3.7 Addressing the court
The court is a sacred place for most law students therefore you need to be respectful to
everyone. From the court marshals to the time keepers to the judges and opposing council
you need to respect everyone and respect them. Each has go a title that they use within the
court. If you do not address the court and the personnel correctly the judges may be forced to
penalize you or correct you. If that happens it show a lack of respect and very little
preparation on you teams part.
The Senior Appellant should always begin by introducing all of the participants of the moot,
and offer a summary of the case at hand. Often the judge will decline this summary, but
particularly in a public moot, or where the judge wants to test understanding of the case, they
may still invite you to summarise.
There are marks awarded for simply getting the language right. Formalities are often a big
letdown for inexperienced mooters. You absolutely must speak as though you are appearing
in court. You never ever say ‘thank you’ or ‘yeah’ or anything you would say in normal
conversation. Instead you should say ‘I am grateful’ or other similarly formal phrases.
The title of your judge will depend on which court you are appearing in for the moot. Often,
the moot will be in the Court of Appeal or the Supreme Court, and as a result a female judge
will be ‘My Lady/Your Ladyship’ and a male judge will be ‘My Lord/Your Lordship’. Note
28 | P a g e
that these are not interchangeable, so you would never say ‘My Ladyship’ or ‘Your Lord’. If
you have a panel of judges then you would refer to them by the gender of the Chairman, so it
would often be ‘My Lords/Your Lordships’. There is nothing more insulting than referring to
a judge by the wrong gender, so make sure you get this correct!
As a general rule, you want to use the judge’s title before starting a new point or phrase, for
example ‘My Lord, if I may move on to my second point…’ and you should always ‘invite’ a
judge’s opinion to something as opposed to asking them to look at it, for example ‘My Lady,
might I invite your attention to divider two of your bundle, behind which you will find the
case of…’
On other word be aware of who you talking to in court and make it a habit to get the address
correct. Even opposing counsel has to be referred to in the correct manner. Below is list of
personnel in court and the title you should use when addressing them or referring to them.
Judges My Lord/My Lady

Opposing counsel My Learned friends/ Counsel
Court Clerk Marshal
Time keeper Marshal
Remember to keep addresses simple and clear at all time when addressing the court there is
nothing more insulting to a panel that getting title wrongs and not acknowledging them
correctly.
You should address the Bench politely, and in the following manner:
 When starting a pleading, remember the court you are in and use the correct title
be it Lord, Lady or excellency
 When talking directly with one Judge: "Your Lordship, excellency or even
President”
You should always refer to your opponents with respect, and in the following manner:
 "My learned colleague" / "My learned Friend"
29 | P a g e
 "The honourable representative of the Applicant / Defendant / Commission"
 "His excellency the Advocate General / the Honoured Advocate General"
Please avoid the following mistakes:
Try to avoid mistakes while addressing the Bench. Addressing the Bench as "your warships
or judges" is NOT a good idea.
Exercise – write down a list of 10 phrases that you think you can use in court when
addressing the panel of judges.
3.8 Courtesy
Courtesy in court cannot be emphasized enough manner make you a better presenter to the
panel. All advocates should be standing up. When it is your turn, make sure you stand up in
your own time when you are ready and receive acknowledgement from the judge for when to
start. The time allotted to you will start from when you open your mouth so if there are
butterflies in your stomach before you start speaking take your time, take a breath, then
begin.

30 | P a g e
Interventions and questions will occur during moot. The true test of a mooter to start with is
not in the presentation they give. Many students can present an argument quite well, even if
they are nervous. The true test is how they stand up to questioning. Moot judges will attempt
to get a student off script and thinking on their feet, answering questions they have about the
case. At a very fundamental level, judges want you to display your advocacy, your
preparation and your skill of persuasion and that is why they interrupt. It isn’t necessarily to
trip you up, make you look small or to give you a savage time – as some students tend to
think when it comes to external moots. They are tasked with resolving a particular problem
and they want your assistance in knowing which way to deal with it.
When this is occurring remember to stop talking let the judge finish, thank them for the
question then proceed. Remember to ask for leave whenever you need permission to do
something and make a submission or proceed to a prayer as this allows you to demonstrate
you understanding of the court expectations of you in relation to courtesy.
Here are 10 tips for new mooter to observe as recommended by practicing lawyers
 DO: Stand when addressing the court.

 DO: Pause and listen when judges are making enquires and seeking clarification.
 DO: Ask permission whenever you are about to do move to secondary arguments or
an amendment is required
 DO: Properly lay the foundation for a document to be submitted to the judges.
 DO: Build credibility by acting with civility and professionalism at all times.
 DON’T: Object before your opponent has finished asking the question.
 DON'T: Continue to argue once a ruling has been made after you have created a
record and never ever talk back when being questioned by the Judge
 DON'T: Address your comments to the opposing counsel instead of the court.
 DON’T: Interrupt opposing counsel when they are asking a question or addressing the
court.
 DON'T: Badmouth opposing counsel or the opposing party.
Punctuality is another factor or characteristics that judges look out for. Arriving to your moot
at least ten minutes early is important to give you the opportunity to settle any nerves and
allow for any last minute alterations before the moot commences. There is really no excuse
31 | P a g e
for being late. It is unprofessional to be late for a moot in the same way that it is for a real
trial. You do not want to upset an impatient judge before the moot even begins.
Task!!! List 5 other things that you should not do in order to be courteous
Exemplary manners are required at all times. During the moot, when your opponents present
their argument, you should sit and listen in respectful silence. You should also pay attention
to them while they are speaking, to ensure you can comment to the bench on the points that
they raise. You should not make any loud noise or comments while your opposition is
speaking, including ruffling through papers and talking to your partner. You should also
refrain from using any suggestive gestures, such as rolling your eyes or screwing up your
face, in response to the things being said by your opposition.
3.9 ACTIVITIES
Go to the ZCAS E-Learning Portal (www.zcas.ac.zm/elearning) and carry out

the designated tasks and exercise
3.10 SUMMARY
There is much literature available on court etiquette and a variety of meanings

given to the expression. This section discusses court etiquette in the context of
the standard of behaviour expected of legal practitioners when working in the
court precinct, and will not cover professional duties as outlined in the legal practioners
guide. As for ZCAS moot court assessment it is the ZCAS University Moot Rules that will
dictate what is expected of you. When at moot court, legal practitioners/students are expected
to behave in a manner supportive of the solemnity of the court’s position.
32 | P a g e
4.0 UNIT Three: Oral Arguments
4.1 INTRODUCTION
The oral part of the moot is what most people associate with the concept of
mooting. Therefore, it is important to be well prepared and confident, not only
about what you will be arguing, but also about Court etiquette. The moot is a formal
appearance, which is intended to replicate a courtroom experience. Whilst it may be
intimidating it is often the most fun part of moot court as you get to demonstrate you
knowledge and your ability to argue facts and the law. However be prepared for the
unexpected.
4.2 AIM
learn what oral presentation skills will be required

How to refer to the written during the oral presentation
Refereeing to authorities in the oral submission
Responding to questions
objects
33 | P a g e
4.3 OBJECTIVES
make successful oral submission
know how to refer and use the brief
know how to refer to the various authorities in the brief
know how to respond to questions
4.4 TIME REQUIRED
6 hour reading time
hours of exercise and task
4.5 REFLECTION
Go to the ZCAS E-Learning Portal (www.zcas.ac.zm/elearning)
4.6 Oral presentations
Making oral presentations is a must and it is a requirement every student has to satisfy in
order to clear moot court when being assessed. Confidence is a must and knowledge of the
fact even more so. At this point you presentation skills will be essential and critical to you
success. Lawyers are expected to be expert presenters and everything has to be perfect. From
you tone to your demeanor to your use and command of the English language. This is the
performance that follows the submission of the brief and is an illustration of the brief that the
34 | P a g e
judges would have read through. For this part of mooting there is nothing better that
practicing oral presentation and perfecting and discovering you presentation style. Most
unprepared students will struggle with this part however if you practice and practice it will be
easier.
It is at this point that you oral presentation skill will be needed. At this point in the module
guide will try to enhance those skills and explain what they are.
An oral presentation is similar to giving a speech but is usually not just a person behind a
lectern. Visual aids and teaching tools are used to further enhance the spoken words.
However in moot court you won’t have these. Your oral presentation can be given as an
individual or as part of a group. It also might add components of technology, such as a slide
show, video clip or audio recording however this is usually reserved for competitive ones as
opposed to internal like this one.
Another term for an oral presentation with technology or other aids is a multimedia
presentation, indicating that forms of media are being used. Most oral presentations require
the presenter to use a combination of spoken words and the memorial brief in front of them.
However moot students prefer to create a personal slide show they use on their laptop which
key words and notes but this is not presented to the court.
Oral presentations incorporate a variety of skills including intonation, eye-contact, and

speech preparation and engaging the judges. The mooter learns to hone their public speaking
35 | P a g e
skills which include keeping track of time and offering well-researched information by
practicing constantly.
Practise! Your fellow students, members of staff or members of a Moot Court team from a
previous year can help by acting as judges when you are practising. They should try to
interrupt your flow by asking questions. You must know your material well enough to cope
with interruptions and then resume your argument
The Rules for Oral Argument set out the time limits, and require the time period to be shared
between members of the team. Decide who is to speak to which section or sections, and
adjust the time to the importance (length?) of the argument to be made in each. Save a little
time for rebuttal if necessary.
Tip!!! Practicing in front of the mirror is a great tool
Be aware of time as already mentioned you are timed the whole time you are making a
presentation. The Timekeeper will indicate at intervals when you have 5, 2, and 1 minute
left. Pay attention to this. The presiding judge will ask you to finish your sentence when the
bell goes. You may ask for a limited extra period – say one minute – if you have been
interrupted by questions from the bench. The presiding judge may grant this if the
interruptions have been extensive.
Speak ‘to’ the judges: do not speak ‘at’ them, and always maintain eye-contact with the
judges do not speak to the floor, the ceiling or a corner of the room. If you can, smile when
starting off at least. Remember to relax as the judges are not cannibals. Never directly
address your opponents; and vilify them only indirectly and in the politest of terms – they are
always your learned friends or “esteemed counsel for respondent/applicant”.
36 | P a g e
Do not speak too fast. If you have more words to say than can fit in the time allowed, you
have too many words. Be concise. Note what is said below about questions. If you finish
your presentation within the time you have set, do not improvise to fill the time.
As mentioned confidence is key but remember the more you practice and learn to enjoy the
mooting experience the easier the process will be. There are significant marks to be gained
and lost by students who give an excellent presentation and those that give an unprepared
presentation. You can never practice enough time for moot court.
Things to do Things not to do
Sound like you care. Even if you think it’s Rush. Keep calm and speak with deliberate
the most boring issue in the world, the judges speed.
should never sense that.
Answer questions directly, completely and

Present your argument as an opinion. Tell the
immediately. Never say “I will get to that in
court what the law is, not what you think it
a minute.”
should be. Avoid first person singular and
“appellant contends, it is our position that, in
our view . . .”
Be conversational, but not overly familiar. Read an argument. Memorize your preferred
Address judges much like a junior associate order of ideas and approach with those
would address a senior associate or partner. simple outline points.
Keep it simple. Be brief and to the point. Use Guess. If you don’t know the answer, admit
plain English, not pretentious expressions or it. Try to avoid this by anticipating every
legalese. question the judges might ask
TASK!!!! Grab two pieces of paper, on the first one brain storm and list the good
things you should display during the oral submission and on the other piece of paper
write down all the bad ones. Keep that paper and refer back to it the day you moot.
37 | P a g e
Always remember that in a moot situation you are not putting forward your own beliefs or
opinions on the case at hand. Rather, you should be submitting to the court the interpretation
of the law and its application to the facts of your case, based on precedent. Counsel should
never use phrases such as “I think”, “I believe”, or “I suggest” when presenting their
argument. Examples of the correct way of presenting arguments are “Counsel for the
applicant will submit, “It is our submission” or even just “I submit”.
4.7 Referring to the written briefs during the oral presentation
You are permitted and expected to refer to the briefs that you have prepared for the judges.
The judges would have read these already so you need to remember not to be seen to be
reading from the guide which is a common mistake amongst students. Whilst you are
allowed it does not give you permission to constantly be on the brief that does not exude
confidence. Try by all means to only refer to the brief on technical point that matter and you
need to guide or direct the judges to that part of the brief.
There are various sources of law that will be included in you brief and cited correctly
therefore if you are going to refer to them make sure are cited correctly and guide the judge
to the specific part where is included.
For a case citation: when referring to a case decision the name of the report should be recited
in full with its year (and year of decision if different). For example, [1948] 2 KB 448 is
referred to in full as ‘1948, volume 2, Kings Bench Division Reports page 448’ in the brief
however when speaking just refer to the name of the case and point out the page to the judges
where the key paragraph is though be aware that the first time a case is referred to the full
citation must be given to the Court.
For acts or parliament remember the full name of the act has to be mentioned as well as the
section you are looking to rely on and the clauses that matter. Ensure the judges are aware of
where this is in you brief. Direct them to the page number and the paragraph number if
required.
Tip!!! Make sure you paragraph are numbered correctly as well as page numbers this
make guiding the judges easier.
38 | P a g e
Referring to authorities in oral submissions
Remember that all authorities relied upon must be legal and validated authorities at that are
acceptable in the court and law. Don not make mistake of saying persuasive case law from
other jurisdiction is valid in Zambia. Only use Zambia authorities as primary sources of law
in Zambia. Whilst commonwealth cases law is permitted remember it’s only of persuasive
value. Remember that you should refer to each authority correctly and cite it the same you
have done in the brief but use a short version of the title.
TIP!!! Never refer to authorities that are not in the brief that is not permitted if there is
need seek the courts indulgence to do so.
39 | P a g e
Responding to question
8 tips to responding to questions
The judges may ask questions. If you do not understand the question, ask for it to be
repeated. If the question is long and complicated, ask for it to be re-phrased
Answer questions directly, completely and immediately. Never say “I will get to that in a
minute.”
Make eye contact. Don’t just look at one judge, connect with each one on the panel
Sound like you care. Even if you think it’s the most boring issue in the world, the judges
should never sense that
Be confident in your ability and your legal knowledge and preparation
Never ever interrupt the judges when they are asking a question
Pause and take a deep breath before answering a question
Remember to always acknowledge the question when asked and the judge asking it
Objections
Objection is rare for internal assessment moot courts. However if given the opportunity you
must stand sit down the opposing counsel then sits down for the objection to be heard. Don’t
40 | P a g e
try and do what you see on television there is a protocol and that will usually be dictated in
the moot court rules.
ACTIVITIES
SUMMARY
The oral part of the moot is what most people associate with the concept of
mooting. Therefore, it is important to be well prepared and confident, not only
about what you will be arguing, but also about Court etiquette. The moot is a
formal appearance, which is intended to replicate a courtroom experience. Whilst it may be
intimidating it is often the most fun part of moot court as you get to demonstrate you
knowledge and your ability to argue facts and the law. However be prepared for the
unexpected.
41 | P a g e
5.0 UNIT FOUR: Written Arguments
5.1 INTRODUCTION
Written arguments in moot court are called memorial briefs; sometimes it

can be the singular words memorial or just brief used to refer to the written
arguments. The written arguments are documents that you are expected to hand into
the judges before the moot court session even commences as these will be assessed
and awarded a mark that is then combined with the marks from the oral submission
that the student will make. These brief are more detailed than the oral argument
which is presented.
5.2 AIM
 To learn how to create logical arrangement of arguments

 Know the format of the brief
 Know drafting heads of arguments
 Referencing authorities
42 | P a g e
5.3 OBJECTIVES
 Know how to create logical arrangement of arguments

 Know the format of the brief
 Know drafting heads of arguments
 Referencing authorities correctly using the Chicago referencing method
5.4 TIME REQUIRED
6 Hours reading time
4 Hours exercise and task time
5.5 REFLECTION
5.6 What is a memorial brief?
There is no particular definition as to what amount to a brief, the only thing one can look at is
that it is a legal document that all lawyers and students must prepare when appearing in
court. A simple definition comes from law dictionary which defines a memorial brief as,
“a petition or representation made by one or more individuals to a legislative or other body.
When suchinstrument is addressed to a court, it is called a petition”7.
7
Law, Jonathan, and Elizabeth A. Martin. A Dictionary of Law. Oxford: Oxford University Press, 2009.
43 | P a g e
The moot court brief is a vital part of your moot court preparation. The document is going to
be presented to your moot court coordinator who then presents it to the judges for assessment
and marking. By the time the judges come round for the oral submission that you will be
making they would and will know every aspect of you argument. The way the document
appears is important, as a law student you are practice what you will be doing in future
therefore the document has to be perfect. Everything from the format to the spelling to the
grammar and structure will be under scrutiny. Your writing skills and English language skill
will come to the forefront at this point and you need to execute appropriately.
Figure 19 Courtesy of Google Images
Logical arrangement of arguments
As with any documentation you will come across there is a way in which that the documents
have to be arranged in an appropriate manner, the arrangement of the brief is essential and if
the brief is incorrectly arranged there can be penalties that will be imposed.
One of the most important parts of your written argument is actually the structure, including
the internal structure of your arguments and the external structure of your speech. There is a
method to the arrangement of the actual written argument that will be reflected in the oral
presentation. As a standard written presentation can be neatly divided into three parts:
44 | P a g e
• Grounds/head of argument
• Main body/detailed arguments
• Prayer
You also need to include the record of proceeding in your write submission and this will
come before the actual arguments that you are going put together. Whilst there is a record of
proceeding in the written argument be prepared to give a summary of those record in your
oral presentation should it be asked for.
Figure 20 Courtesy of Google Images
The figure above give you an idea of what you must prioritise in the written argument in
terms of that is high level requirements that should be evident in the written arguments, this
will include the reason the court should uphold the decision or change the original decision,
whereas low level as you can see will relate to the wording itself of the document but that
does not mean bad spelling would be tolerated.
You must present your argument in a logical way, following the summary of facts that will
have already been given to the Court. Your arguments should focus upon the contentious
issues in the area that you are addressing. You are trying to address to the judge’s satisfaction
the questions that they are most interested in – which will almost always be the difficult areas
of the law – and to structure this in such a way so that it is clear to the Bench. There are
many ways to approach the basic structure of your arguments, but the most obvious one is to:
45 | P a g e
• Determine the particular arguments that you will be trying to make under your area
of law.
• Breakdown each of these arguments into the constituent steps that you need to
achieve in order to prove this argument.
This basic two-step process is simply a case of saying this is the law, these are facts to which
the law applies. In practice though, the construction of your arguments will be more complex
than this, but as a general guide this will be effective.
Another important thing to remember is that you must be clear in telling the judge when you
are moving on to a new submission. This is called signposting. When you finish up with one
submission, you should not just quickly move on to the next. Instead, you must tell the judge
what you are doing – this is as simple as saying “And now I will move on to my second
submission,” direct the judges verbally to the second submission and in the memorial it
should be evident too.
One of the easiest ways to keep a moot moving smoothly is to make everything simple for
the judge to understand. Remember that while an argument or a submission may make
perfect sense to you, this will not always be the case from the judge’s point of view.
Therefore, be mindful of the judge’s concerns and attempt to address them in simple English
so as to make clear what the issues are and why the judge should find in your favour. In and
of itself, simplicity is a good idea because judges tend to respond favourably to this.
TIPS!!!
Remember a brief is a written argument where each side tries to explains to the court why the
previous decision was either proper or improper therefore it is essential that you produce the
best brief that you can in order to maximize on the mark allocation. Whilst an oral
submission may go wrong the brief may save you when getting assessed.
Make sure you organize your argument, it is ideal to separate it into biggest parts, and then
the smaller parts within the bigger parts these parts are called units of discourse and they help
in simplifying you thought process and movement of written arguments. A unit of discourse
is anything in prose that has a beginning and an end: a phrase, clause, sentence, paragraph,
section or sub-section
46 | P a g e
5.7 Format of the brief
The format of the brief is the standard that all students must adhere to when writing their
briefs. Going of the required standard could cost you marks in you assessment. The brief is
usually split into six key parts. These are as follows:
 Cover page
 Index
 List of Authorities
 Record of proceedings
 Memorandum of appeal/response
 Heads of argument
5.7.1 Cover page
This is the page that will contain all the details of the case that is currently being heard.
Details that should be present include:
 the names of the parties that are involved,

 names of both appealing and responding counsel and where they are coming from
 which court the matter is being heard in
 where the matter is also Holden
 the case number and the year
 the jurisdiction whether civil or criminal
Below is an example of what a cover page will have to look like:
47 | P a g e
IN THE HIGH COURT OF ZCAS AND UNZA APPEAL CASE
NO. 2 OF 2019
AT THE ZCAS DISTRICT REGISTRY
HOLDEN AT ZCAS
(CIVIL JURISDICTION)
IN THE MATTER BETWEEN:
JOHN KABWE (SUING ON HIS OWN BEHALF AND

AS NEXT FRIEND OF KAINA KABWE AND ALEX KABWE)
APPELLANTS
AND
CHARLES SINGH
RESPONDENT
BRIEF FOR THE APPELLANTS
Filed by: [Insert names here]

S AND S LEGAL PRACTITIONERS
PLOT NO. 3245 LUBU ROAD
P O BOX 23765
LUSAKA
SampaSaminCS@yahoo.com
ADVOCATES FOR THE APPELLANTS
TO: [Insert name here]
48 | P a g e
ADVOCATES FOR THE
RESPONDENT
5.7.2 Index
The index page is merely formality and guidance to judges and opposing counsel to know
where everything is found in the brief. The index page will include the following:

Below is an illustration of a typical index page.

NO. 2 OF 2019
HOLDEN AT ZCAS

APPELLANTS
AND
CHARLES SINGH
RESPONDENT
49 | P a g e
INDEX
PAGE 2 - INDEX
PAGE 3-4 - LIST OF AUTHORITIES
PAGE 5-6 - RECORD OF PROCEEDINGS
PAGE 7 - MEMORANDUM OF APPEAL
PAGE 8-16 - HEADS OF ARGUMENT
5.7.3 List of authorities
You will also need to submit a list of authorities. The list of authorities should be as concise
as possible, with a good number of relevant cases. Only list cases you propose to cite when
presenting your case. Any additional materials on which you intend to rely, such as statutes
or secondary materials should also be set out in the List of Authorities. Unauthorised reports
should only be cited if there is no authorised report, and electronic judgments should only be
cited if they are unreported, or the reported version is not in the Law Library. You must use
the same reports for the same case. It is very frustrating for the bench to be referred to a
passage in an unauthorised report when the authorised report is in front of it.
Cases and materials must be correctly cited and marks will be deducted for inaccurate
citations.
The case the list page will include:
Below is an example of a complete case list:
50 | P a g e
IN THE HIGH COURT OF ZCAS AND UNZA APPEAL CASE NO. 2
OF 2019
HOLDEN AT ZCAS

APPELLANTS
AND
CHARLES SINGH
RESPONDENT
LIST OF AUTHORITIES
STATUTES
 The Law Reform (Miscellaneous Provisions) Act, Chapter 74 of The Laws of
Zambia
 The Local Courts Act, CAP 29 of the Laws of Zambia.
CASES
 Andrew Tony Mutale v Crushed Stone Sales Limited (1994) S.J 98 (S.C)
 Banda vs Banda and Another (1975) Z.R 123.
 Garthware vs Garthware [1964] 2 ALL E.R. 233.
 Khunga and Others v Daka (Appeal no. 176/2014) [2017] ZMSC 49
 Malawo v Bulk Carriers of Zambia Limited (1978) ZR 185 (SC)
 Miyanda vs The High Court (1984) Z.R. 62.
 Nakalonga v The People (1984) ZR 252
 Naomi Malama v Edwin Chinda Chisenga Appeal No.135 of 2017
51 | P a g e
 Poly Technic Limited v Howard Cooke Appeal 38 of 2018.
 Railroad Co. v. Deninan Minn 2S0 (Gil. 208)
 Reuben Nkomanga vs Dar Farms International Limited SCZ Judgment
No. 25 of 2006
BOOKS
 Bryan A. Garner, (Ed.) Black Law’s Dictionary (8th Ed.) USA: Thompson
Business, 2004
 Charlesworth and Percy on Negligence, 13th Edition, Sweet and Maxwell,
2015.
 Osborn’s Concise Law Dictionary. London: Sweet & Maxwell, 2013
5.7.4 Record of Proceedings
This section includes the facts of the case as occurred of dealt with in so far, the term record
of proceeding means “the official history of any hearing, examination, or proceeding before
the court, and in addition to the application, petition or other initiating document, includes
the transcript of hearing or interview, exhibits, and any other evidence relied upon in the
adjudication; papers filed in connection with the proceedings, including motions and briefs;
notice of appeal or certification”.
The top part of your record of proceedings should include the following details:
An illustration of a partial record of proceeding is listed below:
52 | P a g e
OF 2019
HOLDEN AT ZCAS

APPELLANTS
AND
CHARLES SINGH
RESPONDENT
RECORD OF PROCEEDINGS IN THE COURT BELOW
1. Kaina, a minor girl aged 13 and her little brother Alex aged 10 were riding on a motor
cycle to their house (Salama Park) from town with their father Mr. Kabwe aged 35.
He was riding the motor cycle registered BEA 9168.While riding the motor cycle on
the road a tractor baring number BEA 2013 driven Charles Singh collided with the
motor cycle exactly at the Munali roundabout in the middle of the road………
53 | P a g e
5.7.5 Memorandum of appeal/response
The memorandum of appeal contains the grounds on which the judicial examination is
invited. For purposes of limitation and for purposes of the rules of the Court it is required that
a written memorandum of appeal shall be filed. The memorandum of response is the one that
will deals the matter and argument raised by the appellant in their initial submission.
The top part should include the following details:
An illustration of is listed below:

NO. 2OF 2019
HOLDEN AT ZCAS

APPELLANTS
AND
54 | P a g e
CHARLES SINGH
RESPONDENT
MEMORANDUM OF APPEAL
The appellants named above, appeal before the High Court of UNZA and ZCAS against the
decision of the Local Court in the above mentioned matter on the following grounds namely:
GROUND ONE
It is our humble submission that the Local Court erred in law when it held that there was
contributory negligence on the part of the Appellant in this matter.
GROUND TWO
It is our humble submission that the Local Court erred both in law and in fact when it
apportioned contributory negligence at 50% on the part of the appellant (father) who was
riding the motor cycle and 50% on the driver of the tractor.
GROUND THREE
It is our humble submission that the Local Court erred in law when it rendered a decision as
it did not have jurisdiction to hear and determine the matter.
5.7.6 Heads of argument
This is the part of the document that contains your legal research and all that you have done
in preparation for the moot court session. Citation alone does make the legal argument.
Writing legal citations follows thorough legal research. As you carry out your research, your
notes should capture all the information you will need to write the necessary citations. As
the writer you must explain what the cited authority is about and how it helps the court to
decide the case before it.
Moreover, you must explain what legal authority the cited case has. No case will be
mandatory. The cases and other legal sources vary in degrees of persuasive authority, which
depends largely upon who decided it, the circumstances, when it happened, and whether it
was the result of litigation or arbitration.
55 | P a g e
It is inappropriate and unprofessional to throw several citations into a footnote without
understanding the relevance of that authority to the proposition made by the party. Never cite
a case without knowing the facts and circumstances of that case for relevance to your
submissions. Make sure that the footnotes are necessary to your argument. Points will be
deducted if the memorial judges check the citation to see relevance to the proposition only to
find the citation itself is either incorrect or irrelevant. Make certain the legal authority put
forward is the most current statement of the law.
Lastly remember that all paragraphs must be numbered
The top part should include the following details:
An illustration of is listed below:
56 | P a g e
NO. 2 OF 2019
HOLDEN AT ZCAS

APPELLANTS
AND
CHARLES SINGH
RESPONDENT
HEADS OF ARGUMENT
MAY IT PLEASE THIS HONOURABLE COURT, Counsel for the Appellants herein
begs respectfully to submit hereunder the APPELLANTS heads of argument.
GROUND ONE
1. My Lords and my Ladies, the Black’s Law dictionary defines negligence as the
failure to exercise the standard of care that a prudent person would have exercised in
a similar situation or conduct failing below the legal standard established to protect
others against unreasonable risk of harm.8
2. My Lords and my Ladies, in order to establish negligence, three elements have to be
met or established. These element are best illustrated in the case of Naomi Malama v
Edwin Chinda Chisenga9 where the Court held that in order to prove negligence, the
8
Bryan A. Gardner (Editor in Chief) Black’s Law Dictionary 8th Edition (USA: Thompson Business, 2004), 1335.
9
Appeal No.135 of 2017
57 | P a g e
first step is to prove that there was a duty of care as the law recognizes a relationship
between two parties, such as the duty that all drivers have to exercise care towards
other road users. The Court went on to state that reasonable care connotes avoidance
of excessive speed, keeping a good look out and observing traffic signals. This duty is
owed to parties so placed that they may be reasonably expected to be injured by the
omission to take care.
Tip!!! Two complete briefs are attached in the appendix one is very well made the other
is barely there.
5.8 Referencing Authorities
Please use the Chicago referencing system that you have been using all through the
course. There is a copy of the guide on the student portal for you to use
(www.zcas.ac.zm/elearning)
5.9 ACTIVITIES
5.10 SUMMARY
Written arguments in moot court are called memorial briefs; sometimes it can
be the singular words memorial or just brief used to refer to the written
arguments. The written arguments are documents that you are expected to
hand into the judges before the moot court session even commences as these will be assessed
and awarded a mark that is then combined with the marks from the oral submission that the
student will make. These brief are more detailed than the oral argument which is presented
and you should never make error in the brief.
The mark for the Memorial is fifty per cent of your final total mark. It makes sense to
research thoroughly and do a good job. Some teams have different people writing the
Applicant and the Respondent Memorials. Others have the whole team work on both. Neither
system appears to be better than the other. Do what works for your team. But it does make
58 | P a g e
sense to identify who in the team writes more clearly. No matter how you divide the
workload, argue the points with each other. If you write a draft, or a draft part, do not be so
proud that you defend your words to the death. Putting your argument into words in a written
draft concentrates the mind. It also helps discussion of the ‘case’ you are making for your
‘client’. Very few drafts cannot be improved by discussion and argument.
TOP 5 Overall TIPS to Remember
1. Dress the part
2. Be punctual
3. Address everyone accordingly
4. Use citations in full unless otherwise instructed by the judge
5. Be confident but not cocky
All the best and good luck with moot court, remember to work hard and most
importantly ENJOY it!!!!!
59 | P a g e
6.0 Appendix
Complete Brief A

NO. 2 OF 2019
HOLDEN AT ZCAS

APPELLANTS
AND
CHARLES SINGH
RESPONDENT
Filed by:
TO:
mcslegalpractitioners@gmail.com
ADVOCATES FOR THE

RESPONDENT
60 | P a g e
NO. 2 OF 2019
HOLDEN AT ZCAS

APPELLANTS
AND
CHARLES SINGH
RESPONDENT
INDEX
PAGE 2 - INDEX
PAGE 3-4 - LIST OF AUTHORITIES
PAGE 5-6 - RECORD OF PROCEEDINGS
PAGE 7 - MEMORANDUM OF APPEAL
PAGE 8-16 - HEADS OF ARGUMENT
61 | P a g e
OF 2019
HOLDEN AT ZCAS

APPELLANTS
AND
CHARLES SINGH
RESPONDENT
LIST OF AUTHORITIES
STATUTES
 The Law Reform (Miscellaneous Provisions) Act, Chapter 74 of The Laws of
Zambia
 The Local Courts Act, CAP 29 of the Laws of Zambia.
CASES
 Andrew Tony Mutale v Crushed Stone Sales Limited (1994) S.J 98 (S.C)
 Banda vs Banda and Another (1975) Z.R 123.
 Garthware vs Garthware [1964] 2 ALL E.R. 233.
 Khunga and Others v Daka (Appeal no. 176/2014) [2017] ZMSC 49
 Malawo v Bulk Carriers of Zambia Limited (1978) ZR 185 (SC)
 Miyanda vs The High Court (1984) Z.R. 62.
 Nakalonga v The People (1984) ZR 252
 Naomi Malama v Edwin Chinda Chisenga Appeal No.135 of 2017
 Poly Technic Limited v Howard Cooke Appeal 38 of 2018.
62 | P a g e
 Railroad Co. v. Deninan Minn 2S0 (Gil. 208)
 Reuben Nkomanga vs Dar Farms International Limited SCZ Judgment
No. 25 of 2006
BOOKS
 Bryan A. Garner, (Ed.) Black Law’s Dictionary (8th Ed.) USA: Thompson
Business, 2004
 Charlesworth and Percy on Negligence, 13th Edition, Sweet and Maxwell,
2015.
 Osborn’s Concise Law Dictionary. London: Sweet & Maxwell, 2013.
63 | P a g e
OF 2019
HOLDEN AT ZCAS

APPELLANTS
AND
CHARLES SINGH
RESPONDENT
RECORD OF PROCEEDINGS IN THE COURT BELOW
motor cycle exactly at the Munali roundabout in the middle of the road.
3. Because of the rash and negligent driving of the driver of tractor, the accident took a
tragic turn. In the collision, the front wheel of the motor cycle was separated from the
body of the motor cycle. In the collision with such a big vehicle coming at a faster
speed, the appellant lost control and fell down along with his children. They all
sustained injuries. All three of them were taken to the nearest hospital at Levy
Mwanawasa.
4. After medical examination, it was concluded that the minors had multiple fractures on
their body. The appellant and his children were later taken to UTH where they had to
undergo surgeries. It was opined by Dr. Mwaba, an Orthopedic Surgeon that the
64 | P a g e
appellant had severe head injuries and had 50% permanent disability where as his
daughter had 30% permanent disability and his son had 20% permanent disability.
5. A report was lodged with the local Police Station in Munali against the driver and
they were slapped with reckless driving charges.
6. The appellant filed a claim petition before the local court in Lusaka. He claimed the
compensation was for disability caused to himself and his children and stated his
current income to be ZMW21 000 per annum of which he was not enough to cover
their new life altering disabilities. He also produced Income Tax returns filed for year
2007-08, 2008-09 and 2009-10 showing his income.
7. The appellant owned a small piece of land in Chongwe on which he took crops from
twice a year.
8. The local court after considering the facts and evidence produced on record by its
decision apportioned contributory negligence at 50% on the part of appellant (father)
who was riding the motor cycle and 50% on the driver of the tractor.
Being aggrieved by the erroneous award passed by the local court, the appellants filed an
appeal before the High Court seeking just compensation.
65 | P a g e
NO. 2OF 2019
HOLDEN AT ZCAS

APPELLANTS
AND
CHARLES SINGH
RESPONDENT
The appellants named above, appeal before the High Court of UNZA and ZCAS against the
decision of the Local Court in the above mentioned matter on the following grounds namely:
GROUND ONE
GROUND TWO
It is our humble submission that the Local Court erred both in law and in fact when it
apportioned contributory negligence at 50% on the part of the appellant (father) who was
riding the motor cycle and 50% on the driver of the tractor.
GROUND THREE
66 | P a g e
NO. 2 OF 2019
HOLDEN AT ZCAS

APPELLANTS
AND
CHARLES SINGH
RESPONDENT
HEADS OF ARGUMENT
MAY IT PLEASE THIS HONOURABLE COURT, Counsel for the Appellants herein
begs respectfully to submit hereunder the APPELLANTS heads of argument.
GROUND ONE
3. My Lords and my Ladies, the Black’s Law dictionary defines negligence as the
failure to exercise the standard of care that a prudent person would have exercised in
a similar situation or conduct failing below the legal standard established to protect
others against unreasonable risk of harm.10
4. My Lords and my Ladies, in order to establish negligence, three elements have to be
met or established. These element are best illustrated in the case of Naomi Malama v
Edwin Chinda Chisenga11 where the Court held that in order to prove negligence,
the first step is to prove that there was a duty of care as the law recognizes a
relationship between two parties, such as the duty that all drivers have to exercise
10
Bryan A. Gardner (Editor in Chief) Black’s Law Dictionary 8th Edition (USA: Thompson Business, 2004), 1335.
11
Appeal No.135 of 2017
67 | P a g e
care towards other road users. The Court went on to state that reasonable care
connotes avoidance of excessive speed, keeping a good look out and observing traffic
signals. This duty is owed to parties so placed that they may be reasonably expected
to be injured by the omission to take care.
5. My Lords and my Ladies, the case of Malama v Chisenga further states that the
second element of proving negligence is the breach of duty of care. The claimant
must prove that the duty of care was breached and lastly as a result of that breach
harm was suffered by the injured person. It is very clear from the record of
proceedings that that Mr.Singh had a duty of care towards other road users (Mr.
Kabwe and his children) and that he breached this duty by over speeding which
resulted in the accident that lead to Mr. Kabwe and his children suffering loss and as
such it can rightfully contended that negligence was established on the part of
Mr.singh.
6. My lords and My Ladies, with regards to the issue of contributory negligence,
Section 10 of the Law Reform (Miscellaneous Provisions) Act 12 provides that where
any person suffers damage as the result partly of his own fault and partly of the fault
of any other person or persons, a claim in respect of that damage shall not be defeated
by reason of the fault of the person suffering the damage, but the damages
recoverable in respect thereof shall be reduced to such extent as the court thinks just
and equitable having regard to the claimant's share in the responsibility for the
damage.
7. My lords and my Ladies, in the case of Nakalonga v The People13, it was held that
everyone is entitled to assume in all circumstances, that other persons will be careful.
On the contrary, a prudent man will guard against the possible negligence of others
where experience shows such negligence to be common. The court went on and took
judicial notice of acts such as sudden turning, turning without indicating and
overloading as forms of negligence that are common to all road users. Based on the
holding of this case, Mr. Singh ought to have guarded against such factors.
8. My Lords and my Ladies, we wish to rely on the case of Poly Technic Limited v
Howard Cooke14, where the Appellant dug a trench in the road and did not warn road
users about it by putting warning signs. This lead to the Respondent Plunging into the
trench and the accident occurred. Had the Respondent been driving on the correct
12
CAP 74 of The Laws of Zambia.
13
(1984) ZR 525
14
Appeal No.38 of 2018.
68 | P a g e
lane of the road, he would not have plunged in the trench and as such contributory
negligence was raised against the Appellant. It was held that driving on the wrong
lane would not amount to contributory negligence. The Appellant was wholly
negligent by not putting warning signs of the trench as this amounted to breach of
duty of care which resulted in the loss suffered by the Respondent.
9. My Lords and my Ladies, the case of Naomi Malama v Edwin Chinda Chisenga15
provides that the law requires motorists to use reasonable care to avoid harming
anyone on the road. This entails driving at a reasonable speed, vigilance and keeping
a proper look out while driving. Would a prudent reasonable motorist in the position
of the respondent fail to see the motor cycle? We are of the view that a reasonable,
ordinary and prudent drive would have kept a careful look and reasonable speed for
other road users.
10. My Lords and my Ladies it is very clear from the record of proceeding that Mr.
Kabwe did not act or omit to act in a manner that would have contributed to the loss
that he suffered. The record of proceedings clearly states that the accident was as a
result of Mr. Singh’s rush, over speeding and negligence that lead to the accident.
11. My Lords and my Ladies, in the case of Malawo v Bulk Carriers of Zambia
Limited16,it was held that whilst causation is the decisive factor in determining
whether there should be a reduced amount payable to the plaintiff, nevertheless the
amount of the reduction does not depend solely on the degree of causation. The
amount of the reduction is such an amount as may be found by the court to be 'just
and equitable', having regard to the claimant's share in the responsibility for the
damage. This involves a consideration, not only of the causative potency of a
particular factor but also of its blame-worthiness. It is very clear from the record of
proceeding and the various cases that have been cited that at no point did Mr. Kabwe
act in any manner that amounted to contributory negligence nor did he act in any way
so as to be blamed for the loss and damaged that he suffered.
NO. 2 OF 2019
HOLDEN AT ZCAS
15
Appeal No.135 of 2017.
16
(1978) ZR 185 (SC)
69 | P a g e

APPELLANTS
AND
CHARLES SINGH
RESPONDENT
HEADS OF ARGUMENT
GROUND TWO
My Lords and my Ladies, it is our humble submission that the court erred both in law and in
fact when it apportioned contributory negligence at 50% on the part of the appellant (father)
1. My Lords and My Ladies, Compensation has been defined in Osborn’s Concise

Law Dictionary, as a payment to make amends for loss or injury to person or
property, or as recompense for some deprivation, e.g. compensation to the owner for
compulsory acquisition of his property.17
2. My Lords and My Ladies, in the case of Railroad Co. v. Deninan Minn18,

Compensation has been defined as an act which a court orders to be done, or money
which a court orders to lie paid, by a person whose acts or omissions have caused loss
or injury to another, in order that thereby the person injured may receive equal value
for his loss, or be made whole in respect of his injury. Furthermore, pain and
suffering has been defined in the case Reuben Nkomanga vs Dar Farms
International Limited19 as Loss of amenities, permanent disability or loss of future
prospective earning.
17
Osborn’s Concise Law Dictionary (London: Sweet & Maxwell, 2013), 100.
18
2S0 (Gil. 208)
19
SCZ Judgment No. 25 of 2006.
70 | P a g e
3. My Lords and My Ladies, in Khunga and Another v Daka20, the Court stated the
situation where compensation may apply and to whom it may be given in a situation
of a road traffic accident. In this case the judge found that the necessary and
immediate consequence of the collision was the damage to the Respondent’s motor
vehicle and personal injuries, if any, to the Respondent or any other person who may
have been in the motor vehicle. Any other damage would be considered as special
damage and that damage must be specifically pleaded. Taking into consideration the
aforementioned, the Appellants had suffered pain and injuries. These included part
and permanent disabilities by the children and the father, which was cause by the
negligent driving of the respondent.
4. My Lords and My ladies, special damages have been defined in Black’s Law
Dictionary as damages awarded to compensate for actual out-of-pocket expenses that
a claimant has incurred as a direct result of the defendant’s actions or behaviour.
5. My Lord and My Ladies, in the case of Khunga and Others v Daka21, there were
some common examples of special damages that included short-term medical
expenses and included doctor’s consultation fees, hospital charges and all other
expenses related to medication, diagnostic tests and hospital stay. Long-term medical
expenses, included injuries that may require one to undergo long term physiotherapy
or other medical treatments. If this was made necessary because of the accident, one
can claim compensation under special damages. Further, loss of earning
capacity which means that if the injuries are such that you are unable to return to your
former place of employment and are forced to take up a lower-paying job, you may
be able to claim compensation under this category. Whereas “general damages” were
defined as in the Black’s Law Dictionary, as damages awarded to compensate for
the direct effects of the accident, where the claimant’s injuries can be clearly linked to
the defendant’s actions or behaviour.
6. My Lords and My Ladies, from the aforementioned definitions, the appellant in this
case has suffered multiple injuries, including 50% permanent disability, 30% for his
daughter and 20% for his son, as mentioned in the lower courts, the respondent’s bike
was also damaged in the accident caused by the respondent. It is our submission that
20
(MP) (Appeal no. 176/2014) [2017] ZMSC 49
21
(Appeal No. 176/2014) [2017] ZMSC 49
71 | P a g e
the appellant should be awarded compensation for both special and general damages
in full as he did not contribute to the accident.
7. My lords and My ladies, based on the aforementioned it is also our humble

submission that the Respondent has acted negligently from which the Appellants and
his children have suffered pain and suffering and were hospitalised and should be
awarded damages.
8. My Lords and My Ladies, the learned authors of Charlesworth and Percy on

Negligence also highlighted the difficulties associated with assessing damages for
pain and suffering. They thus simplified it by stating that:
Any injured person is likely to suffer loss in many ways in which it is not
possible to measure in financial terms, such as pain, disability and the reduced
ability to derive pleasure from life. In order to attempt to achieve restitution,
which is the purpose of damages for personal injuries, the Court must embark
upon the wholly artificial exercise of placing a financial value upon such
losses… Clearly in all cases where the body’s integrity has been violated,
resulting in either temporary or permanent impairment, the injury by itself
properly attracts an award of damages. Damages for pain and suffering are
intended to provide reasonable compensation for the claimant’s actual and
prospective bodily hurt, including that which results from necessary medical
care, surgery and treatment. No perfect compensation can be given. The Court
is not estimating the price which the victim would have accepted as
consideration for suffering the injuries sustained inevitably, monetary
compensation will fall short of the value placed by the victim upon the injury
to his mental and physical health.
9. My Lords and My Ladies, in Andrew Tony Mutale v Crushed Stone Sales

Limited22, in this case the way the general damages was awarded was the rate
applicable at the date of the award, taking into account pain and suffering and loss of
amenities including the inability to participate sport and family activities, the
possibility that the respondent would suffer because of her loss of earning capacity,
the slight handicap of being unable to carry out house chores, which was mitigate by
22
(1994) S.J 98 (S.C)
72 | P a g e
the employment of servants but which was still a disability which was not suffered
before the accident , the cosmetic disadvantages caused by the scars including the
pronouncedly ugly lime and the detriment to her married life, the award was four
million five hundred thousand kwacha. In this case, the appellant was awarded both
general and special damages as the appellant had suffered 30% permanent disability.
10. My Lords and My Ladies, it is our submission that the court determines the full
compensation due to the Appellants taking into consideration his injuries and his
income of ZMW 21, 000. 00 per annum that is not enough looking at his current
circumstances as well as his children.
PRAYER FOR GROUND 1 AND 2
It is our humble prayer that this Honourable Court recognizes and holds that there
was no contributory negligence and as such the claimant be fully compensated for the
loss suffered.
73 | P a g e
NO. 2 OF 2019
HOLDEN AT ZCAS

APPELLANTS
AND
CHARLES SINGH
RESPONDENT
HEADS OF ARGUMENT
GROUND THREE
1. My Lords and my ladies, jurisdiction is defined by the Black Law’s dictionary as a

court’s power to decide a case or issue a decree. 23 Rules of jurisdiction prescribe the
authority of the courts within the court hierarchy.24 The matter of jurisdiction in this
case is being raised due to the Local Court rendering a decision in a case arising
under negligence and road accidents.
2. My Lords and my ladies, it is our submission that the Local Court did not have
jurisdiction to adjudicate the dispute brought before it by the appellant. In order to
determine this, it is necessary to consider and comprehend the term jurisdiction. In
the case of Miyanda vs The High Court25, the then Deputy Chief Justice Ngulube
23
Bryan A. Gardner (Editor In Chief) Black’s Law Dictionary (eighth edition) (USA: Thompson Business) 2004, p
2490.
24
Bryan A. Gardner (Editor In Chief) Black’s Law Dictionary (eighth edition) (USA: Thompson Business) 2004, p
2490.
25
(1984) Z.R 123.
74 | P a g e
stated that the term jurisdiction should first be understood in one sense as the
authority which a court has to decide matters that are litigated before it. In another
sense it is the authority which a court has to take cognizance of a matter presented in
a formal way for its decision.
75 | P a g e
3. My Lords and My ladies, the English case of Garthwaite vs Garthwaite26 also
considered the term jurisdiction and stated that:
the jurisdiction of a validly constituted court connotes the limits which are
imposed on its power to hear and determine issues between persons seeking to
avail themselves of its process by reference: (i). to the subject matter of the
issue, or (ii) to the persons between them and the issue, is joined, or (iii) to the
kind of relief sought or combination of these…
It is our submission to agree entirely with these expositions of the legal requirements as to
what amounts to the jurisdiction of the courts.
4. My Lords and my ladies, the limits of authority of each of the courts in Zambia are
stated in the appropriate legislation and as such the limits may relate to the kind and
nature of actions and matters of which the particular court has cognizance or the area
over which the jurisdiction extends or both.27
5. My Lords and my ladies, Local Courts have different grades, exercising jurisdiction
only within the limits prescribed for such grades. The Jurisdiction of the Local Court
in relation to civil matters is provided for under section 8 of the Local Court Act 28
which states that:
Subject to the provisions of this Act, a local court shall have and may
exercise, within the territorial limits set out in its court warrant, such
jurisdiction as may be prescribed for the grade of court to which it belongs,
over the hearing, trial and determination of any civil cause or matter in which
the defendant is ordinarily resident within the area of jurisdiction of such court
or in which the cause of action has arisen…
The prescribed jurisdiction of the courts in civil cases is made clear in section 5 of the
Local Courts Act29 which states inter alia that local courts of each grade shall exercise
jurisdiction only within the limits prescribed for such grade:
‘‘Provided that no local court shall be given jurisdiction-(i) to determine civil claims,
other than matrimonial or inheritance claims, of a value greater than one hundred and
twenty fee units…’’
26
[1964] 2 ALL E.R. 873
27
D.C.J Ngulube as per Judgement in Miyanda vs The High Court.
28
CAP 29 of the Laws of Zambia
29
76 | P a g e
6. My Lord and my Ladies, Grade A are mandated to handle cases of up to K3, 060.
000 while Grade B Local Courts are mandated to handle cases of up to K2, 500.00. It
is not in dispute that the Appellant clearly stated that his current income of ZMW 21,
000. 00 per annum was not enough to cover their new life altering disabilities and
produced income tax returns to this effect to show his income.
7. My Lords and my ladies, owing to this matter the Local Court should have stated
that they did not have jurisdiction to hear the matter as the amount of money that the
appellant wanted far exceeded that which the Local Courts have jurisdiction to grant.
8. My Lords and My ladies, the jurisdiction of the Local Courts is generally restricted
to customary law and this is clearly stated under section 12 of the Local Courts Act30
which gives inter alia that:
Subject to the provisions of this Act, a local court shall administer- (a) the
African customary law applicable to any matter before it in so far as such law
is not repugnant to natural justice or morality or incompatible with the
provisions of any written law; (b) the provisions of all by-laws and
regulations made under the provisions of the Local Government Act and in
force in the area of jurisdiction of such local court; and(c) the provisions of
any written law which such local court is authorised to administer under the
provisions of section thirteen.
9. My Lords and my ladies, it is our humble submission that claims that arise of out
negligence and road traffic accidents such as the issue at hand cannot be determined
using any of the laws outlined above especially not customary law and therefore we
submit that the decision rendered by the Local Court is null and void for want of
jurisdiction.
10. My Lords and My ladies, this assertion was confirmed in the case of Banda vs
Banda and Another31 where the courts held that basically the local court’s
jurisdiction is to administer the African customary law applicable to any matter, the
provisions of all the laws and regulations made under the provisions of any written
law which such Local Court is authorized to administer.
PRAYER
30
31
(1975) Z.R 123.
77 | P a g e
It is our humble prayer that this Honourable Court quashes the decision of the Local
Court as it did not have the jurisdiction to rule on the matter.
78 | P a g e
NO. 2 OF 2019
HOLDEN AT ZCAS

APPELLANTS
AND
CHARLES SINGH
RESPONDENT
Filed by:
S AND S LEGAL PRACTITIONERS
PLOT NO. 3245 LUBU ROAD
P O BOX 23765
LUSAKA

TO:
MCS LEGAPRACTITIONERS
3RD FLOOR, PREMIUHOUSE,
P.O.BOX 31112
LUSAKA
Mcslegalpractitioners@gmail.com
ADVOCATES FOR THE
RESPONDENT
79 | P a g e
Example of partially incomplete brief below:
IN THE HIGH COURT OF UNZA/ZCAS APPEAL CASE NO.3 OF

2019
HOLDEN AT ZCAS CAMPUS
IN LUSAKA
IN THE MATTER BETWEEN
KABWE APPELLANT
AND
CHARLES SINGH RESPONDENT
BRIEF FOR THE RESPONDENTS
FILED BY:
scslegalpractioners@gmail.com
TO:
ncmlegalpractioners@gmail.c
om
ADVOCATES FOR THE
RESPONDENT
80 | P a g e
IN THE HIGH COURT OF UNZA/ZCAS APPEAL CASE NO.3 OF 2019
IN LUSAKA
MR KABWE
APPELLANT
AND
MR CHARLES SINGH
RESPONDENT
INDEX
PAGES 1 ………………….......................................INDEX
PAGE 2-3...…………………………………………LIST OF AUTHORITIES
PAGE 4 ……………… …………………………..MEMORANDUM OF APPEAL
PAGE 5-6 ……………………………………………RECORD OF PROCEEDINGS
PAGE 7-18…………………………………… APPELANTS HEADS OF ARGUMENT
81 | P a g e
2019
IN LUSAKA
(CIVIL JURISDICATION)
KABWE APPELLANT
AND
CHARLES SINGH RESPONDENT
LIST OF AUTHORITIES
LEGISLATION
 The Road Traffic Act No.11 of 2002.

CASES
 Daka v The Attorney General 1990 - 1992) Z.R.131 (H.C.)

 Heaven v Pender 1863 11 Q.B.D
 Livingstone v Rawyard Company HL 13 FEB 1880.
 Malawo v Bulk Carriers Zambia Ltd (1978) Z.R. 185.
 Marcus Kampumba Achiume (S.C.Z. Judgment No. 2 of 1983) [1983]
 Mwaba and Others v Machisa and Another (S.C.Z. Judgment No. 21 of 1987)
 Sata v Zambia Bottlers (S.C.Z. Judgment No. 1 of 2003)
82 | P a g e
2019
IN LUSAKA
MR KABWE APPELLANT
AND
MR CHARLES SINGH RESPONDENT
GROUND ONE
We contend with all due respect that the court below erred in law by considering that the
appellant was contributory negligent should therefore have increased damages to the extent
of the respondents negligence.
GROUND TWO
We contend with all due respect that the court below misdirected itself on a point of law in
not fully compensating the appellant.
83 | P a g e
IN LUSAKA
MR KABWE APPELLANT
AND
RECORD OF PROCEEDINGS
motor cycle exactly at the Munali roundabout in the middle of the road.
2. Because of the rash and negligent driving of the driver of tractor, the accident took a
tragic turn. In the collision, the front wheel of the motor cycle was separated from the
body of the motor cycle. In the collision with such a big vehicle coming at a faster
speed, the appellant lost control and fell down along with his children. They all
sustained injuries. All three of them were taken to the nearest hospital at Levy
Mwanawasa.
3. After medical examination, it was concluded that the minors had multiple fractures on
their body. The appellant and his children were later taken to UTH where they had to
undergo surgeries. It was opined by Dr. Mwaba, an Orthopedic Surgeon that the
appellant had severe head injuries and had 50% permanent disability where as his
daughter had 30% permanent disability and his son had 20% permanent disability.
84 | P a g e
4. A report was lodged with the local Police Station in Munali against the driver and
they were slapped with reckless driving charges.
5. The appellant filed a claim petition before the local court in Lusaka. He claimed the
compensation was for disability caused to himself and his children and stated his
current income to be ZMW21 000 per annum of which he was not enough to cover
their new life altering disabilities. He also produced Income Tax returns filed for year
2007-08, 2008-09 and 2009-10 showing his income.
6. The appellant owned a small piece of land in Chongwe on which he took crops from
twice a year.
7. The local court after considering the facts and evidence produced on record by its
decision apportioned contributory negligence at 50% on the part of appellant (father)
8. Being aggrieved by the erroneous award passed by the local court, the appellants filed
an appeal before the High Court seeking just compensation.
85 | P a g e
IN THE HIGH COURT OF UNZA/ZCASAPPEAL CASE NO.3 OF 2019
IN LUSAKA
MR KABWE APPELLANT
AND
APPELANTS HEAD OF ARGUMENT
GROUND ONE
We contend that lower court erred when it did not find the respondent wholly negligent.
1. May it please this honorable court, we respectfully submit that the trial court
misdirected itself both in law and in fact when it held that the appellant was
contributory negligent and liable for the injuries caused by the driver to the
appellant. It is an established principle in the case of Marcus Kampumba
Achiume32 “The appeal court will not reverse findings of fact made by a trial
judge unless it is satisfied that the findings in question were either perverse or
made in the absence of any relevant evidence or upon a misapprehension of the
facts or that they were findings which, on a proper view of the evidence, no trial
court acting correctly can reasonably make.” In this instance which gives the high
32
Marcus Kampumba Achiume (S.C.Z. Judgment No. 2 of 1983) [1983]
86 | P a g e
court the power to challenge the decision made in the lower court where in this
instance there has been a misapprehension of facts when the decision was made.
2. My Lords and My Ladies, under ground one we contend with all due respect that
the court below erred both in law and in fact by considering that the appellant was
contributory negligent should therefore have awarded compensation to the extent
of the respondents negligence.
3. My Lords and My Ladies in order to fully address this ground of appeal, it will be
prudent to first to establish what the tort of negligence and what the requirements
are necessary to fulfil this tort are. Negligence was defined in the case of Heaven v
Pender33 as the neglect of the use of ordinary care or skill towards a person whom
the defendant owes a duty of observing ordinary care and skill. In order to prove
that there was negligence, three requirements need to be satisfied and these are
duty of care, breach of duty and consequential damage. These elements of the tort
of negligence were stated by the court in Daka v The Attorney General.34 In an
event that of the requirements is not satisfied by the plaintiff, the action fails in
negligence. This can be seen in Sata v Zambia Bottlers35 where the court held
that one of the elements of negligence was not proved and that was consequential
damage.
4. My Lords and My Ladies to support our argument, we wish to draw the attention
of the court to the three (3) elements that require to be satisfied in order for a claim
of negligence to succeed. According to the following are the elements: a legal duty
of care, breach of that duty as well as damage as a result of the breach. In this
instance the duty of care arises from the law establishing a relationship between
two parties as in this scenario is from The Road Traffic Act36 which under Section
154 and 155 provides for careless driving and reckless or dangerous driving. This
two sections make people liable if they do not drive cautiously.
5. My Lords and My Ladies, when negligence is at issue a duty of care is essential
but not in contributory negligence. All that is required is that the plaintiff should
have failed to take reasonable care for his own safety. The standard of care
expected of the plaintiff is in the same as that in negligence itself and is in the
same sense objective and impersonal, though some concession is made towards
33
[1863] 11 Q.B.D
34
(1990 - 1992) Z.R.131 (H.C.)
35
SCZ Judgment No. 1 of 2003
36
The Roads and Road Traffic Act Chapter 464 of The Laws of Zambia
87 | P a g e
children and probably towards other persons suffering from some infirmity or
disability rendering them unable to come up to the normal standard. Putting aside
such exceptional cases, a person is guilty of contributory negligence if he ought
reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he
might be hurt himself. In the circumstances of our case, we submit that the
appellant did act as a prudent man and therefore did not contributed to his injuries.
6. My Lords and my Ladies, in civil cases the burden of proof falls on the person
making the allegation in this case the defendant (in this case the respondent) must
prove contributory negligence. The defendant must show firstly, that the plaintiff
failed to take proper care in the circumstances for their safety and secondly the
failure to take care was a contributory cause of damage suffered.
7. . My Lord and My Ladies, we submit that any reasonable person would have taken
reasonable care to avoid the collision. However the driver who was driving in a
rash and negligently and knew that was not safe and therefore did not take any
reasonable care to ensure he was safe from any of the possible accidents. It is
therefore our submission that the lack of care exhibited by the driver led to the
injuries of the appellant and therefore the court should not have held the driver
contributory negligent but just negligent on his own.
8. My Lords and My Ladies, contributory negligence is when the plaintiff injuries
have been caused partly by the negligence of the defendant and partly by his own
negligence. Therefore is not only necessary to establish the defendant was
negligent, but also essential to establish that the plaintiff’s conduct contributes to
his damage. It is therefore essential that the plaintiff ‘s lack of care should be a
contributory factor to his damage, that is to say, the injury to him must at be least
be within the broad scope of the risk created by his negligence. However from the
facts provided to us it is clear that the appellant acted with utmost care and did not
play any part in the occurrence of the accident and therefore did not contribute to
the accident and should not be held partly negligent.
9. My Lords and My Ladies, the degree of want of care which will constitute
contributory negligence varies with the circumstances. As with any of the law of
negligence the standard of care demanded may be adjusted to meet changing
conditions.
88 | P a g e
10. My Lord and My Ladies, we further draw the attention of this court to the Supreme
Court decision in in the case of Mwaba and Others v Machisa and Another37 the
appellant court refused a claim of contributory negligence based on the facts and
evidence rendered to the court, the learned trail judge held that the evidence
showed that the appellant actions were not the cause of the accident.
11. My Lords and my Lady, we humbly submit that as the defendant was solely
negligent and the appellant’s injuries were caused by this negligence, in line with
the authorities cited, the court ought to have increased the damages to represent the
level which the defendant was negligent.
12. My Lords and my Lady, we therefore contend with all due respect that the court
below erred in law by considering that the appellant was contributory negligent
should therefore have awarded damages to the extent of the respondent’s
negligence.
PRAYER
Your Lord and Ladyship, having endeavored to show this honorable Court that the learned
trial Judge in the Court below erred in law when he held that the appellant had contributed to
his own injuries, it is my humble prayer that this court uphold this appeal and damages be
awarded appropriately. The costs of this appeal must be borne by the respondent.
37
(S.C.Z. Judgment No. 21 of 1987)
89 | P a g e

(2019) Approved Module - L331 Moot Court 4

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

(2019) Approved Module - L331 Moot Court 4

Uploaded by

Copyright:

Available Formats

The University of Zambia

BACHELOR OF COMMERCIAL LAW

L331 MOOT COURT

Author: Chaponga Nguluwe

ALL RIGHTS RESERVED

ALL RIGHTS RESERVED.......................................................................................................i

Figure 1 Courtesy of Bing Search

1.1 MODULE AIM

By the end of the course, students should be able to:

a) demonstrate skills in oral arguments

1.3 ASSESSMENT DETAILS

 Final examinations 70%

 Fox, M and Bell, C., (1999), Learning Legal Skills, Glasgow:

 Shaw, N., (1996), Effective Advocacy, London: Sweet & Maxwell

 Berganman, P., (2006), Trial Advocacy in a Nutshell, 4th Edition, St.

1.6 STUDY SKILLS

1.7 NEED HELP?

Zambia Centre for Accountancy Studies (ZCAS)

Dedan Kimathi Road, P O Box 35243, Lusaka, Zambia

 develop the skill of identifying the grounds/heads of arguments

 Identify the correct grounds for each argument

 Know what legal arguments are

 Know how to carry out legal research

2.4 TIME REQUIRED

6 Hours reading time

4 Hours tasks and exercise time

Figure 2Courtesy of Bing Search

 Each team is presented with a problem to prepare based on a hypothetical factual

Key pointers to be aware of or best practice

 Remember that it is accepted to ask a judge to repeat a question if you do not

 A critical aspect of mooting is time management. You need to be able to expand or

10 common terminology phrases you will come across in this course

Supreme Court and House of Lords opinion

Submissions/ my/ our

My learned friends/The opposing counsel

Thank you My Lords/Lordships/Lady/Ladyship/I’m grateful

This case is distinguished

2.7 Identification of grounds

What are my Legal arguments? What are my Factual arguments?

Figure 4Courtesy of Bing Search

Figure 5 Courtesy of Bing Search

Figure 6Courtesy of Bing Search

Figure 7 Courtesy of Oxford University Press

 the power of the Court to hear the case; and

Jurisdictional issues are especially important in assessment moots as well as completions

Figure 8 Courtesy of Bing Search

See portal for activities to be carried out.

A moot court is a simulation of a real court to give students an insight on

There is much literature available on court etiquette and a variety of meanings

Figure 10 Courtesy of Bing Search

 to be introduced to appropriate dress code

At the end of this unit you should be able to do the following

 Be able to address the court correctly

 Know the courtesy that is expected

3.4 TIME REQUIRED

6 hours of reading time

4 hours of exercises and tasks

Go to the ZCAS E-Learning Portal (www.zcas.ac.zm/elearning) and

Figure 11Courtesy of Bing Search

Summary of dress codes to be observed

Male students Female students

 Tight fitting and low cut tops of any

 To keep things simple, female’s law

Figure 12 Courtesy of Bing Search