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CIVIL PROCEDURE IN ZAMBIA

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DOI: 10.13140/RG.2.2.30360.51206

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CIVIL PROCEDURE IN ZAMBIA

EMMANUEL MITENGO
 TABLE OF CONTENTS

Statutes v
Rules v
Regulations v
Other authorties v
Cases vi
1 THE PURPOSE OF CIVIL PROCEDURE 1
1.1 Rules of procedure 3
1.1.1 The Adversarial Procedure 3
1.1.2 The Inquisitorial Procedure 3
2 JUDICIAL SYSTEMS IN ZAMBIA AND JURISDICTION OF COURTS 5
2.1 The courts system under the BSA company 5
2.2 Crown 6
2.3 The later colonial period 7
2.4 Independence 7
3 THE HIERARCHY OF MODERN COURTS IN ZAMBIA 8
3.1 The Superior Courts 8
3.1.1 The Supreme Court 8
3.1.2 The constitutional Court 9
3.1.3 The Court of Appeal 10
3.1.4 The High Court of Zambia 10
3.2 The Subordinate Courts 16
3.3 Small Claims Court 18
3.4 Local Courts 20
4 PARTIES TO ACTION 23
4.1 Plaintiff and Defendant 23
4.1.1 Plaintiff 23
4.1.2 Defendant 23
4.2 Representation in civil suits 26
4.2.1 Proceedings against the State 27
4.2.2 Third party proceedings 27
4.2.3 Third party notice 27
4.3 Joinder of parties 27
4.3.1 Joinder of plaintiffs 28

i
 4.3.2 Joinder of defendants 28
4.4 Misjoinder 28
4.5 Non-joinder and misjoinder of parties 28
4.6 Alteration of parties 29
5 PLEADINGS 31
5.1 Matters which must be specifically pleaded 31
5.2 Setting aside pleadings 33
5.3 Major types of pleadings 34
5.4 Effects of failure to plead 35
6 AFFIDAVIT 36
6.1 Form of affidavits 36
6.2 Declarations without oath 37
6.3 Contents of an affidavit 37
6.4 Affidavit by blind or illiterate persons 37
6.5 Scandalous matter in the affidavit 37
6.6 Alterations in affidavits 37
6.7 Who can be the commissioner 37
6.8 Rules in taking affidavits 37
6.9 Discontinuance of action 38
6.9.1 Effect of discontinuance 39
6.10 Withdrawal of summons 39
6.11 Directions for trial 39
7 DISPOSAL OF MATTER ON A POINT OF LAW 40
7.1 Application under Order 33 Rule 3 of the RSC 41
8 SECURITY FOR COSTS 42
8.1 Order XL of High Court Rules 42
8.1.1 Form of application 42
8.1.2 Manner of giving security 43
9 COMMENCEMENT IN THE HIGH COURT 45
9.1 Writs of summons 45
9.1.1 Indorsement of claim 45
9.1.2 Indorsement as to solicitor and address 46
9.1.3 Concurrent writ 46
9.1.4 Duration of a writ and renewal 46
9.2 Originating summons 46

ii
 9.2.1 Contents of the Originating summons 47
9.2.2 Form of summons 47
9.2.3 Originating summons vis-à-vis writ of summons 47
9.3 Originating notice of motion 47
9.3.1 Which claims can be begun by originating motions? 47
9.3.2 Contents of an originating motion 48
9.4 Petition 48
9.4.1 Contents of a petition 48
9.5 Appeal 49
10 SERVICE OF ORIGINATING PROCESSES/ORDERS 50
10.1 Order X of High Court Rules 50
10.1.1 Personal Service (Order X, Rule 6) 50
10.1.2 Service by post (Order X) 50
10.1.3 Service on partnerships (Order X, Rule 11) 50
10.1.4 Service on legal practitioners on behalf of their clients 51
10.1.5 Substituted Service (Order X Rule 3) 51
10.1.6 Service on foreign person in foreign country (Order X, Rule 18) 51
10.1.7 When service out of the jurisdiction allowed (Order X, Rule 15) 51
10.2 Time for effecting service 51
10.3 Entry of appearance 52
10.3.1 Conditional appearance 52
10.3.2 Time of appearance 52
10.3.3 Appearance to originating summons 53
11 JUDGMENT 54
11.1 Order XXXVI of the High Court Rules 54
11.2 Default judgment 54
11.2.1 Setting Aside Judgment 55
11.3 Regular judgment 55
11.4 Summary judgment 55
11.5 Review of judgment 56
12 COSTS 58
12.1 Taxation of bill of costs 58
12.2 Appeals on taxation 59
12.3 What to include in the bill of costs 59
12.4 Solicitor – Client fees 60

iii
 12.4.1 Dispute with respect to fees charged by a practitioner to his own client 60
12.4.2 Advocates’ disputed bill to Taxing officer 61
13 ENFORCEMENT OF JUDGMENTS AND ORDERS 62
13.1 Order XLV of RSC 62
13.1.1 General principle 62
13.1.2 Conditions for the stay of execution of default judgment 62
13.2 Execution of judgment 62
13.2.1 Property liable for execution 63
13.3 Methods of enforcing money judgments 63
13.3.1 Writ of Fieri Facias 63
13.3.2 Walking possession 63
13.3.3 Garnishee proceedings 63
13.3.4 Writ of delivery 64
13.3.5 Writ of possession 64
13.3.6 Charging Order 64
13.4 Interpleader proceedings 64
13.5 Contempt of court 65
13.5.1 Kinds of Contempt 65
13.6 Writ of sequestration 66

iv
 STATUTES
1911 Order in Council 6
Article 120 (1) of the Constitution of Zambia 8
Article 124 of the Constitution 8
Article 130 of the Constitution 10
Article 133 (1) of the Constitution of Zambia Act Number 2 of 2016 10
Article 134(b) of the Constitution 12
Article 266 of the Constitution 8
Commissioner of Oaths Act 38
Companies Act Chapter 388 of the Laws of Zambia 25
Constitutional Court Act, Number 8 of 2016 9
Court of Appeal Act No. 7 of 2016 10
Criminal Procedure Code 13
Electoral Process Act, No. 35 of 2016 49
High Court Act, Chapter 27 of the Laws of Zambia 14
Judgments Act Cap 81 56
Lands and Deeds Registry Act, Chapter 185 of the Laws of Zambia 49
Lands Tribunal Act 2010 12
Law Reform (Limitation of Actions, Etc.) Act 31
Law Reform (Miscellaneous Provisions) Act 56
Legal Practitioners, Act Chapter 30 of the Laws of Zambia 58
Local Courts Act, Chapter 29 of the Laws of Zambia 21
Matrimonial causes Act No. 20 of 2007 49
Northern Rhodesia Order in Council, 1911 6
Order in Council of 1899 5
Rating Act No. 21 of 2018 12
Royal Charter of October 29, 1889 5
Supreme Court, Chapter 25 of the laws of Zambia 8
State Proceedings Act, Chapter 71 of the Laws of Zambia 27
Statutory instrument No 8 of 2001 60
Statutory Instrument No. 5 of 2022 (“SI No. 5”) 16
Subordinate Courts Act, Chapter 28 of the Laws of Zambia 16

RULES
Companies (winding up) Rules 2004 4
High Court Rules, Chapter 27 of the Laws of Zambia 25
Industrial Relations Court Rules 13
Protection of Fundamental Rights Rules of 1969 49
Rules of Supreme Court of England 1999 Edition 40
Rules of the Supreme Court of England 1965 Edition (the “RSC”) 24
Rules of the Supreme Court of England of 1965 55
Supreme Court Practice Rules 24

REGULATIONS
Legal Practitioners’ Practice Rules (Statutory Instrument No. 15 of 2002 60
Practice Direction No. 4 of 1977 52

OTHER AUTHORITIES
Halsbury’s Laws of England 43

v
 CASES
Amber Louise Guest and Another V Bearice Mulako Mukinga & Attorney General 51
Associated Leisure Ltd v. Associated Newspapers Ltd [1970) 2Q.B. 450, p.456) 37
Behn v. Bloom (1911) 132 L.T.J. 87 37
Bellamano v Ligure Lombarda Limited (1976) Z.R. 267 45
Bonaventure Bweupe v Attorney-General, Zambia Publishing House Company Limited and Times of Zambia
(1984) ZR 21 16
Chikuta v Chipata City Council (1974) Z.R. 241 43
Chikuta v Chipata Rural Council (1974) Z.R. 241 18
Claudins Ash Sons & Co. Ltd. Invicta Manufacturing Co. Ltd 29 R.P.C. 465 H.L) 37
D.G Mpundu v Attorney General 37
Davy v. Garett (1878) 7 Ch. D. 473, p.489 37
Drummond – Jackson v British (1970) 1 All ER 38
Felicitus Mwaba and Queen Mwaba (suing by her father and next friend Leonard Mwaba) and Angela Mwaba (Suing
by her father and next friend) v Mwababu Machisa and another (1987) Z.R. 114 29
Gee v Bell (1887) 59
Harry Mwanga Nkumbula and Simon Mwansa Kapwepwe v United National Independence Party (1978) Z.R 388 31
Isaac Tantameni Chali (executor of the Will of the late Mwala -Vs- Liseli Mwala (1995/1997) Z.R. 199 30
Knowles v Roberts (1888) 38
Lawrence v Norres (1890) 15 AC 210 38
Leopold Walford (Z) Limited v Unifreight (1985) Z.R. 203 (S.C.) 50
London Ngoma and Others v LCM Company Limited and United Bus Company of Zambia Ltd (Liquidator) (1999)
Z.R. 75 34
Magnum (Zambia) Limited v Basit Quadri (Receiver/Manager) & Grindlays Bank International Zambia Limited
(1982) Z.R. 141 30
Michael Chilufya Sata v Post Newspapers Limited and Another (1993-1994) ZR 106 16
Mike Hamusonde Mweemba v Kamfwa Obote Kasongo and Zambia State Insurance Corporation Limited (2006)
Z.R. 101 34
Miyanda v The High Court (S.C.Z. Judgment 5 of 1984) 16
Murray v Epson Local Board (1897) 1Ch 35 38
Mwanza v The People (1976) Z.R. 154 17
Perestrello E Companhia Limitada v United Paint Co. Ltd 37
Rating Valuation Consortium & DW Zyambo & Associates (suing as a firm) v Lusaka City Council & Zambia
National Tender Board (2004) Z.R. 109 31
Rural Development Corporation Limited V Bank of Credit and Commerce Zambia Limited (1987) ZR P.35 52
Ruth Kumbi v Robinson Kaleb Zulu S.C.Z Judgment No. 9 of 2009 18
Shamwana v Mwanawasa [1994] ZMHC 2 (29 May 1994) 16
Sithole v The State Lotteries 37
The Attorney-General v Tall and Zambia Airways Corporation Limited (1995/1997) Z.R. 54 34
Zambia National Holdings Limited and United National Independence Party v. The Attorney-General (1994) S.J. 22
(S.C.), 16

vi
1 THE PURPOSE OF CIVIL PROCEDURE
Alem Abraha, Tafesse Habte

Fair Hearing of a Suit/Impartiality of the Courts

There are certain factors against which impartiality of courts is evaluated or through which “fair hearing of
a suit” is ensured. The following are the major ones.
a. Neutrality of the Presiding Judge
Any person who sits in judgment over the interests of others must be able to bear an impartial and objective
mind to the question in the controversy; i.e. he/ she should impart justice without fear or favour. That is,
the authority empowered to decide dispute between opposing parties must be one free from bias-by which
is meant an operative prejudice; for example, predisposition towards one party or against the other without
proper regard to the true merits of the case.
In this regard, there are some common sources of bias that should disqualify a person from acting as a
judge.
Personal Bias
Although with the ever-growing interdependability of human relations, this factor has always been a matter
of judicial interpretations; there are, in fact, a number of scenarios that may create a personal bias in the
judge’s mind. It usually arises from friendship, relationship (either personal or professional) or hostility or
animosity against either of the parties; or, negativity from personal prejudices; or even political rivalry.
Locaball (UK) Limited v Bayfield Properties Limited & Another ChD 29 Feb 2000, where the English Court of
Appeal held:
“In contrast, a real danger of bias may well be thought to arise if there is personal friendship or animosity between the
Judge and any member of the public involved in the case, particularly if that person’s credibility may be significant in
the outcome of the case, if, in a case where the Judge has to determine an individual’s credibility, he has rejected that
person’s evidence, in a previous case, in terms so outspoken that they throw doubt on his ability to approach that person’s
evidence with an open mind on a later occasion; if the Judge has expressed views, particularly in the course of the hearing,
on any question at issue extreme and unbalanced terms that they cast doubt on his ability to try the issue with an
objective judicial mind or if for any other reason, there is a real ground for doubting the Judge’s ability to ignore
extraneous considerations, prejudices and predilections and inability to bring an objective judgment to bear on the issue.”
Pecuniary Bias/ Bias as to the Subject- Matter
The rule against pecuniary bias originates from the legal maxim: “nemo judex in cause sua”, implying that no
one should be a judge in his own case; and, it arises from monetary interests in the subject matter of the
dispute, no matter how small or insignificant it might be. Where the judge himself is a party or has some
connection with the litigation so as to constitute a legal interest that should disentitle him from being a
“judge in his case”. Generally, even if in some cases there may be no real likelihood of bias of any sort, one
may still be disqualified from assuming the judicial position for justice should not only be done, but must
appear to be done to the litigating public. Thus, the requirement of the rule against bias (whose observance
is recommended in the name of impartiality) goes to the extent of imposing the duty upon the presiding
judges to withdraw themselves from the proceedings where it causes (or, appears to cause) the violation of
the rule.
b. Right to be Heard: Nobody should be condemned unheard!

1
Any one against whom an action is taken or who’s right or interest is, thereby being affected should be
aware of the information against him and should also be granted a reasonable opportunity to defend him
self. The governing maxim in this case runs: “audi alter am partem”; meaning “Hear the other side”– no body
should be condemned unheard. Two of the facets of the maxim are:
i. Notice has to be given to the party before the proceedings start and,
ii. A party has to be given an adequate and reasonable (effective) opportunity to explain (hearing).
Moreover, a party should have the opportunity to adduce all relevant evidence on which he relies and
opportunity for rebuttal of evidence submitted against him.
c. Equality of Treatment Every one is prima-facie equal before the law
This principle implies equal subjection of all persons to the ordinary laws of the land as administered by
the regular courts of law; and, law extends protection to everyone. Hence, each party to a law suit should
be treated equally without discrimination of any sort (sexual, religious, status, ethnic origin, political
affiliation, etc). This rule is so grand that it is considered an approximate synonym for and equated with the
entire notion of justice.
Moreover, the degree to which procedural rules facilitate equal opportunities of participation for the
litigants to influence the judgment may be taken as the most important criterion by which procedural
fairness is evaluated. In sum, there are three fundamental pillars used as ultimate test of procedural fairness
(equality) for instance, sine qua non for even, handed dispensation of justice.
Public Hearing of a Suit
Justice must not only be done but must also be seen being done

“Hearing”, here, refers to the consideration by the court of the allegations and defences of either side before
rendering the final decision. In principle when the court undertakes such a hearing, the public at large, must
have access to the litigation process (court-room) without, of course, negating exceptional situations of
inherently confidential nature wherein courts may consider cases in a closed chamber (“in Camera”).
Accessibility to the media-which serves as a bridge between the two-is another important aspect of
transparency.
Such an open court proceedings ensures transparency of judicial activities and secures the acceptability and
reliability (credibility) of the judiciary. It is in this sense that it is often said that justice must not only be
done, but must also be seen being done!
Establishment of Courts by Law
In the spectrum of the fundamental principles of administration of justice, an item which may, at first
glance, seem to be more of technical and not so much important; but, in reality, no less weighty than others,
is the requisite for courts to be established by law. In a sense, the structures of the courts; their hierarchical
relations and their comparable jurisdictions have to be explicitly constituted by law; and, only courts so
established can assume judicial function.
Nevertheless, the Zambian courts retain sufficient breadth and depth of jurisdiction and power to assume
an active and creative role, and they have from time to time demonstrated a willingness to do so. The courts
have exercised jurisdiction to at least hear numerous potentially politically explosive cases.1 At times they
have ruled against the executive, although not wholly without repercussion. 2 The courts have also
demonstrated a readiness to speak out, even where their power to act is restricted, and to comment on
policy and criticize the government actively asserting and protecting their existing domain and power. An
African jurist has said, "it would seem that on the whole governments in the newly independent countries hanker after the

1
Nkumbula and Kapwepwe and the Attorney-General, S.C.Z. Judgment No. 15 of 1979.
2
The International Commission of Jurists Review, No. 4,1966.

2
simplicity of the colonial arrangement, with the primary aim of the courts being to uphold the power of the state, enforce its laws
and provide stability. The courts' function of protection of the individual from the abuse of power is relatively new and less well
appreciated."3
The courts, of course, also possess considerable power in their use of the interpretive function, both as to
legislation and as to the common law. There are a number of ways and means a court might use to creatively
apply legislation.4 Creative use of the common law also offers judicial means for reform. Zambian courts
have demonstrated that they will deviate, not only from previous British precedents,182 but from their own
precedents as well, when they deem it justified. 5 Thus the court may continue to assert an aggressive
reformative role.

1.1 RULES OF PROCEDURE

To reiterate what has already been said, rules of procedure are commonly termed as means to an end and
not end in themselves. They are thereto ensuring that legal disputes are handled as fairly and expeditiously
as possible. In the process of arriving at the truth about the relevant facts and the pertinent laws applied
thereto, the laws of procedural rules in any country chiefly adopt either the “Adversarial” or the
“Inquisitorial” modes of fact- finding to the total, or, partial exclusion of the other; or, at times, an
interplay of the two, where, of-course, one may flagrantly take over the upper hand.

1.1.1 The Adversarial Procedure

The adversarial method, whose routs are traced to the early Anglo-Saxon court proceedings, is alleged to
be the typical feature of English judicial process or the major proponent of the system (other countries as
such as the USA, Australia and New Zealand do also belong to this category).
The prominent characteristics of an adversarial court proceeding, seen from the procedural point of view,
is that the parties themselves (or represented by their advocates) shoulder the burden of initiating, shaping
and fixing the scope of the litigation. The process is termed as the core of what might be called the “factual
methodology” of the system- in contrast to the other style of adjudication, which employs some purely
theoretical reasoning to reach at a conclusion.
The underlying proposition of the system is that truth is most likely to emerge as a bi-product of the
vigorous combat between intensely partisan advocates. The advocates are not supposed, at least as a matter
of fact; to see the resolution of the case as a question of what might be best for the society as a whole.
Rather, their ultimate goal is to see the possible disposition of the controversy in terms of their client’s best
interest-taking a “win-at-all-costs” attitude.

Hence, due to such a “litigant-driven” fact-finding process, the system has often been likened to a battle or
sporting event on which the players and the players alone are responsible for the determination of the
(nature and effect) outcome of the contest. Thus, an adversarial court proceedings judges play a relatively
passive role. Their function is limited to regulating the proper conduct (smooth flow) of process. This
restrictive mandate of the courts potentially circumscribes the intervention of the judges in the substance
of the litigation. Thus, the judge is merely there as an impartial umpire to see to it that the rules of the game
are evenly and properly observed by the players.

1.1.2 The Inquisitorial Procedure

This mode of investigative procedure is originally tied to the traditional function of a strong and absolute
government, namely the maintenance of public order and the suppression of crimes. It is chiefly employed
in the judicial proceedings of the Continent Europe (France and Germany being the representative ones).

3
Amissah, Ann, E.: "The Role of the Judiciary in the Governmental Process: Ghana's experience", Vol. 13.
4
Church, W.L. "Courts, Legislature and the Application of Zambia's Stock Theft Law", Vol. 5 Zambia Law Journal,
1973, p. 7
5
Silungwe, C.J., Annel M., "Administration of Justice in Zambia"

3
“Inquisitorial” procedure is self-expressive in that the judges can inquire deep into the merits of the case
so as to be able to decide on what the real issues between the parties are. They can, for instance, order the
parties to produce further evidence and critically examine the witnesses of either side, if and when they are
of the opinion that a fair decision cannot otherwise be reached.
Yet, true to this system, the real parties do have active role to play in initiating, shaping and fixing the scope
of the litigation. However, relatively speaking the system envisage, a more active role for the judges to play
instead of being a mere “pronouncer” of the bi-product of the activities of fierce partisan advocates-as is
the case with the adversarial proceeding. Judges are basically thereto ensuring public control over the
management of the individual cases by enforcing the law. They thus occupy a centrepiece in the “fact-
finding” process as opposed in contrast to the neutral umpire of the adversarial judge.
Hence, from the above discussions, one may conclude that the prime difference between the two modes
of litigations lies mainly on the degree of the roles played by the judge vis-à-vis the actual parties to the
case. Hence, one may plausibly propound that the High Court Rules were extensively influenced by and
originated from the Common Law Tradition-to which the UK was (and still is) the typical representative.

4
2 JUDICIAL SYSTEMS IN ZAMBIA AND JURISDICTION OF COURTS
Earl L. Hoover, John C. Piper and Francis O. Spalding

The power of a court to hear and render a binding decision-jurisdiction of courts- is the cardinal point of
discussion in this Chapter. Accordingly, it deals with the identification of appropriate (level of) courts that
should consider justiciable cases of civil nature. So as to be able to pass a legitimately binding decision,
courts should first of all, have jurisdiction over the case submitted to them.

2.1 THE COURTS SYSTEM UNDER THE BSA COMPANY

From its inception, the system of judicial administration introduced by the British in Northern Rhodesia
differentiated between Europeans and native Africans. Section 14 of the Royal Charter of October 29, 18896,
entrusting the administration of Rhodesia to the British South African Company (BSA Company),
authorized this differentiation, but did not suggest its true dimensions:
In the administration of justice to the said peoples or inhabitants, careful regard shall always be had to the customs and
laws of the class or tribe or nation to which the parties respectively belong, especially with regard to the holding, possession,
transfer and disposition of lands and goods, and testate or intestate succession thereto, and marriages, divorces, legitimacy,
and other rights of property and personal rights, but subject to any British laws which may be in force in any of the
territories aforesaid and applicable to the peoples or inhabitants thereof.7
In actual practice, the BSA Company left the judicial administration of Africans to Africans.8 The British
courts, composed of BSA Company officers, were undermanned and ill-equipped from the outset. Only
those serious crimes brought to the attention of the administrators were likely to find their way into a
British court docket.
This simple judicial structure sufficed for the next ten years. The European population in the territory
remained small, and there was little need for further development of courts capable of administering
British justice. Tribal chiefs continued to administer customary law, with only occasional interference
from the BSA Company officials. The British were primarily occupied in suppressing the Portuguese and
Arab slave trade and in bringing warring tribes under control. Thanks to British technological superiority
in the art of warfare, Pax Britanica had been substantially imposed by the end of the century.
The Barotseland—North-Western Rhodesia Order in Council of 1899 established a more elaborate judicial
system in the territory in which it pertained. Provision was made for the appointment of judges and
magistrates, English law was to apply except where otherwise stated in the Order,1 and the high
commissioner was empowered to issue such proclamations as he found necessary to maintain order in
the territory. Article 9 of the Order retained a limited degree of protection for customary laws.
The high commissioner in issuing such proclamations shall respect any native laws or customs by which the civil relations
of any native chiefs, tribes, or populations under Her Majesty's protection are now regulated, except so far as the same
may be incompatible with the exercise of Her Majesty's power and jurisdiction.
The North-Eastern Rhodesia Order in Council of 1900, pertaining to the Northern Rhodesian territory
not covered by the Order in Council of 1899, established a more elaborate judicial structure than had the
North-Western Order. A High Court was created with civil and criminal jurisdiction over all cases in the

6
Royal Charter of Incorporation of the British South Africa Company, October 29, 1889.
7
Royal Charter of Incorporation of the British South Africa Company, October 29,1889,514.
8 Statutes defining "African" varied widely throughout the British colonies. See A. Allott, Essays in African Law,

Butterworths, London, 1960, pp 173-178; A. Epstein, The Administration of Justice and the Urban African, London,
H.M.S.O., 1953, pp 20-21.

5
territory. Appeal to Her Majesty in Council could be taken in civil cases involving amounts over £500. In
criminal cases, the high commissioner was given the power to “... remit or commute, in whole or in part,
any sentence of the High Court, and may signify remission or commutation by telegraph". Magistrates'
courts were created, the High Court having appellate jurisdiction. Customary law was given approximately
the same limited degree of protection as had been provided in the Order in Council of 1899. But specific
provision was made in the Order for retention of customary law in civil cases between African litigants
even in British courts:
In civil cases between natives the High court and the magistrates' courts shall be guided by native law so far as that
law is not repugnant to natural justice or morality, or to any order made by Her Majesty in Council, or to any
Regulation made under this order. In any such case the court may obtain the assistance of one or two native assessors,
to advise the court upon native law and customs, but the decision of the court shall be given by the judge or magistrate
alone. In all other respects the court shall follow, as far as possible, the procedure in similar cases in England.9
The British courts were also to recognize such native marriages as were valid at customary law.
Like the Barotseland North-Western Rhodesia Order in Council, the North-Eastern Rhodesia Order
in Council did not extend official recognition to tribal courts a situation which was to continue until
1929.10 Nor was any system of appeal provided from tribal courts to the magistrates' courts or the
High Court. Thus, two distinctly different systems of judicial administration developed the officially
recognized courts administering English law (and, infrequently, customary law "in civil cases between
natives"); and the de facto tribal courts administering customary law. So long as African litigants were
willing to accept the decisions of tribal courts, contacts and conflicts between the two judicial systems
would remain at a minimum.
In the remaining years to 1911 it became increasingly apparent that the two territories both under BSA
Company control, both following a quite similar pattern of development could be more efficiently
administered as a single territory.

2.2 CROWN
By the early 1920's, the BSA Company officials had become satisfied that Northern Rhodesia was too
costly a territory to administer, and the crown in turn was satisfied that the BSA Company
administration could be improved upon. On February 20, 1924, the crown assumed the responsibility
for the administration of the territory. The 1911 Order in Council was revoked, and a governor was
appointed for the territory. The High Court, magistrates' courts, and native commissioners' courts
were retained. The laws of England were to be applied so far as circumstances permitted:
... provided that no Act passed by the parliament of the United Kingdom after the commencement of the
Northern Rhodesia Order in Council, 1911, shall be deemed to apply to the said territory, unless it shall have
been applied thereto since the commencement of said order, or shall hereafter be applied thereto, by any law or
ordinance for the time being in force in the said territory.11
Recognition was not extended to tribal courts, but customary law was to be applied in civil cases
between natives "... so far as that law is applicable and is not repugnant to natural justice or morality,
or to any order made by His Majesty in Council, or to any law or ordinance for the time being in
force". Thus, initially, under crown administration, there was no more of a link than there had been
under the BSA company between tribal courts and the official judicial structure. The system left to the
crown by the BSA Company was being actively reconsidered, however.

9
A. Allott, New Essays in, African Law, 1970,158-75, Butterworths, London, 1970, pp 158-75.
10
See p. 83. F. Spalding, E. Hoover and J. Piper, "One Zambia, One Judiciary: The Lower Courts of Zambia", (1970)
1 &2 Zambia Law Journal, p. 12
11
Native Courts Ordinance, No. 33 of 1929 S 6 (N. Rhodesia). A subordinate court was defined as any court, not a
native court, subordinate to the High Court.

6
2.3 THE LATER COLONIAL PERIOD
From the establishment of the urban native courts in 1936 to 1960, statutory changes in the judicial
structure of Northern Rhodesia were relatively minor. The appointment of native courts adviser in
1948 to supervise and review native court decisions, was the most important administrative change
made during the period. Such dissatisfaction with the native courts as existed centred on the
constitution of the urban native courts, and the laws applied by them. Inasmuch as it was impossible
to place a representative of every tribe represented in an urban area on a given native court, chiefs and
litigants not represented complained of tribal favouritism in the courts. And as the number of educated
urban Africans increased, they were reported to complain more frequently about being subject to
customary laws no longer accepted by them.
The High Court Ordinance of 1960, concerned mainly with modernizing court rules and procedures,
and the Native Courts Ordinance of I960 extending the limits of native court jurisdiction, were the
final major statutory enactments prior to independence. The increasing volume of litigation dealt with
by the native courts from to independence and the relative rarity of appeals from native court decisions
were indicative of the importance of these courts in the judicial administration of Northern Rhodesia.
The low incidence of appeals may suggest as well that litigants were reasonably content with the
decisions of these courts.12
The magistrates' courts and High Court during the period to independence continued to administer
the laws and procedures imported from England. The volume of cases in these courts showed an
increase roughly parallel to that in the native courts. Such difficulties as these courts encountered were
primarily centred on personnel. Magistrates with long experience in Northern Rhodesia were often
posted to other colonies, while High Court judges were selected from other colonies, where they had
often had little or no experience in deciding civil cases. Moreover, the demanding duties placed upon
High Court judges coupled with the advanced age of many High Court appointees resulted in a rapid
turnover of High Court judges.13

2.4 INDEPENDENCE
With the coming of independence on October 24, 1964, there came as well a spate of changes in what
was now the Zambian judicial system.14 The 1964 Annual Report of the Judiciary and the Magistracy,
the first to appear under Zambian imprimatur, echoed these events:
1. The year 1964 saw many and far-reaching changes in the judicial system of the country. With
the introduction of the new constitution in January, there was established for the first time a
Court of Appeal, solely for the territory ... Provision was made in the Constitution for the
appointment of a justice of appeal and the puisne judges of the High Court also became judges
of the Court of Appeal; the number of puisne judges was subsequently increased from four
to five.
2. The new Constitution also provided for the establishment of a judicial service commission
under the chairmanship of the chief justice with important advisory and executive powers
over judicial appointments and designed to ensure that such appointments were made free
from political influence. . .
3. During 1964 the process of integrating the native courts within the judicial system was begun
and considerable progress made.

12
Moffat, African Courts and Native Customary Law in the Urban Areas of Northern Rhodesia, 9J. Afr. Ad. 71 (1957)
13
A. Mitchley, "The Responsibilities of the Judiciary and of the Bar for the Protection of the Rights of the Individual
in Society" 6-7 in (Six Papers on) the Rule of Law (in Northern Rhodesia) (Lusaka, 1963).
14
The Legal Organization of a New State: Zambia, Rev. of Contemp. Law No. 1/1965 at 155.

7
3 THE HIERARCHY OF MODERN COURTS IN ZAMBIA
Roger Purdy

Broad powers in the hands of a strong judiciary can provide an effective shield against concentration of
arbitrarily exercised executive power, and can augment law reform. The courts, perhaps, in some instances
are the most effective medium for such action. As it has been said:
". . . it is in the courts and not in the legislature that our citizens primarily feel the keen cutting edge of the law. If they
have respect for the work of the courts, their respect for law will survive the shortcomings of every other branch of
government; but if they lose respect for the work of the courts, their respect for law and order will vanish with it to the
great detriment of society".15
Zambia may be said to have two court systems namely, the superior courts and subordinate courts. Article
120 (1) of the Constitution of Zambia provides that:
The Judiciary shall consist of the superior courts and the following courts:
a. subordinate courts;
b. small claims courts;
c. local courts; and
d. courts, as prescribed
Article 266 of the Constitution clearly defines a superior court to mean:
1. The Supreme Court,
2. Constitutional Court,
3. Court of Appeal
4. High Court
Established in accordance with this Constitution.
The Supreme Court shall be constituted by an uneven number of judges of not less than three judges,
except when hearing an interlocutory matter.
(1) The Supreme Court shall be constituted by an uneven number of judges of not less than three
judges, except when hearing an interlocutory matter.
(2) The Supreme Court shall be constituted by one judge when hearing an interlocutory matter.

3.1 THE SUPERIOR COURTS

3.1.1 THE SUPREME COURT

The Supreme Court is established by Article 124 of the Constitution and is the final court of appeal and does
not try civil or criminal offences as it is an appellate court that hears appeals from the Court of Appeal. It
consists of the Chief Justice, the Deputy Chief Justice and eleven other judges. Article 126 provides that:
The Practice and Procedure in the Supreme Court is provided for by section 8 of the Supreme Court, Chapter 25 of the
laws of Zambia and in default the procedure to be used, in criminal matters, is that of the Court of Criminal Appeal in
England.
An appeal from the Court of Appeal should be made to the Supreme Court with leave of the Court of
Appeal. This means that before appealing to the Supreme Court, one must apply for permission from the

15
Vanderbilt, Mr. Justice Arthur. The Challenge of Law Reform. Princeton University Press, Princeton, 1955, p. 45,
as quoted in Abraham, Henry J., The Judicial Process, 1968, p. 3. 2nd edition, Oxford University Press, New York.

8
Court of Appeal. In other words, one cannot appeal to the Supreme Court as a matter of right. The Court
of Appeal can give permission to appeal where it considers that-
a. the appeal raises a point of law of public importance;
b. it is desirable and in the public interest that an appeal by the person convicted should be
determined by the Supreme Court;
c. the appeal would have reasonable prospects of success; or
d. there is some other compelling reason why the appeal should be heard.
Composition
The Supreme Court of Zambia consists of the Chief Justice, the Deputy Chief Justice and 11 Supreme
Court Judges. All the Judges of the Supreme Court have Research Advocates who assist them with
research. Research Advocates attached to Supreme Court Judges are qualified legal practitioners with a
minimum of 5 years post Bar admission experience. The Registrar of the Supreme Court is the head of
Court Operations in the court. The Registrar is assisted by the Master of the Supreme Court, who is in
charge of the day-to-day operations of the Court Registry. The Master of the Supreme Court is assisted
by the Assistant Master of the Supreme Court, Registry Clerks and Marshals.

3.1.2 THE CONSTITUTIONAL COURT

This is the first of its kind in Zambia and only came into existence on the enactment of Act No. 2 of 2016
which is an amendment to the Constitution of Zambia of 1991. Article 128 of the Constitution endows the
Constitutional Court with original and final jurisdiction to hear matters relating to the constitution and
violation or contravention of the constitution.
The Constitutional Court, as established, is at the same level as the Supreme Court. This means that all
decisions of the Constitutional Court are Final and a person dissatisfied with the decision of the
Constitutional Court cannot appeal to any other Court (Article 121). Following the establishment of the
Constitutional Court, the Constitutional Court Act, Number 8 of 2016 was enacted which provides for the
process and procedure of the court. The Constitutional Court became operational for the purpose of
hearing and determining cases in May 2016.
Composition of the Court
In terms of its composition, the Constitutional Court has an establishment of thirteen (13) Judges, that is
the President of the Court, Deputy President and eleven (11) other Judges. The President presides over the
Court and in her absence, the Deputy President must preside over the Court. In the absence of the Deputy
President, the most senior Judge may preside over the Court (Article 127 and Article 129). Currently the
Constitutional Court only has seven Judges.
When hearing a substantive matter, the Constitutional Court must comprise an uneven number of not less
three judges except on interlocutory matters. This means that three Judges of the Court can hear and
determine a matter. The full 5 bench of the Constitutional Court comprises five (5) Judges. All decisions
of the Court are made by majority decision (Article 129).
Jurisdiction of the Court
The Constitutional Court has original and final jurisdiction to hear and determine matters in respect of
interpretation of any provision of the Constitution, any matters relating to the election of the President and
Vice president as well as any matters relating to appeals on petitions of election of Members of Parliament
and Councillors as well as matters to determine whether an issue is a Constitutional issue or not (Article
128).
However, since the referendum that sought to amend and enhance the Bill of rights and repeal and replace
Article 79 failed, enforcement of violation of Human Rights as enshrined in the Bill of Rights, that is under
part three of the Constitution, is within the Jurisdiction of the High Court in accordance with Article 28 of

9
the Constitution of Zambia. Subject to Article 28 (2), where a question relating to the Constitution arises
in a court, the person presiding in that court shall refer the question to the Constitutional Court.
Sitting of the Court
The sittings of the Constitutional Court are held at Lusaka but may be held at such other place in accordance
with the circuit schedule.
Legal Representation
The parties to a matter before the Constitutional Court may appear in person or be represented and appear
by a Legal Practitioner.

3.1.3 THE COURT OF APPEAL

The Court of Appeal is created by Article 130 of the Constitution and the Court of Appeal Act No. 7 of 2016. It
has jurisdiction to hear appeals from the High Court; other courts, except for matters under the exclusive
jurisdiction of the Constitutional Court; and quasi-judicial bodies, except a local government elections
tribunal.
No civil or criminal matters may start from the Court of Appeal as it is an appellate court and the court
shall be constituted by an uneven number of not less than three judges, except when hearing an appeal in
an interlocutory matter. Interlocutory matters include applications for leave to appeal and applications
pending appeal. In accordance with the Constitution as read with the Court of Appeal Act No. 7 of 2016, the
Court of Appeal has jurisdiction to hear appeals from the High Court, quasi-judicial bodies, except a local
government elections and other courts, except for matters under the exclusive jurisdiction of the
Constitutional Court
Composition
Under Article 130 of the Constitution as read with the Superior Courts (Number of Judges) Act No. 9 of 2016, the
Court of Appeal is composed of the Judge President, the Deputy Judge President and seventeen Court of
Appeal Judges. During the year under review, the composition was as follows: The Judge President and
Deputy Judge President plus ten (10) other judges.
Leave to appeal
An appeal from a judgment of the Court lies to the Supreme Court with leave of the Court. An application
for leave to appeal, under subsection (1) is made within fourteen days of the judgment. The Court may
grant leave to appeal where it considers that
▪ The appeal raises a point of law of public importance;
▪ It is desirable and in the public interest that an appeal by the person convicted should be
determined by the Supreme Court;
▪ The appeal would have a reasonable prospect of success; or
▪ There is some other compelling reason for the appeal to be heard. Leave to appeal does not
operate as a stay of execution of a judgment.

3.1.4 THE HIGH COURT OF ZAMBIA

The High Court of Zambia is established under Article 133 (1) of the Constitution of Zambia Act Number 2 of
2016.
The High Court has the following divisions; Industrial Relations Court, the Commercial Court, the Family
and Children’s Court.
Subject to Article 128, the High Court has:

10
 ▪ Unlimited and original jurisdiction in civil and criminal matter.
▪ Appellate and supervisory jurisdiction, as prescribed, and
▪ Jurisdiction to review decisions, as prescribed.
The Judge in Charge is responsible for the general operation of High Court. The Judge in Charge is assisted
by the Registrar of the High Court who is based at the High Court, supported by other administrative
officers in carrying out the day-to-day administrative functions.
Composition
The Chief Justice, as an ex-officio judge; the Chief Justice may descend to the High Court as in the case
of Shamwana v Mwanawasa [1994] ZMHC 2 (29 May 1994)
a. The High Court is constituted by one Judge or such other number of Judges as the Chief Justice
may determine.
b. Such number of judges as prescribed.
The Chief Justice may constitute, by statutory instrument, specialized Courts of the High Court to hear a
specific matter. The composition of Courts specified above shall be prescribed. us, by this provision, the
Chief Justice by virtue of his or her office, is a puisine judge and can descend to hear and determine matters
in the High Court. Once the Chief Justice descends, he or she sits as a high court judge with powers of the
high court judge and his or her decisions can be reversed by the higher courts. In the case of Bonaventure
Bweupe v Attorney-General, Zambia Publishing House Company Limited and Times of Zambia (1984) ZR 21- Silungwe,
Chief Justice descended as High Court to hear a matter in which the plaintiff, a high court judge, was a
litigant in his own court. In Michael Chilufya Sata v Post Newspapers Limited and Another (1993-1994) ZR 106-
Ngulube, Chief Justice descended to sit as a puisine judge due to high profile litigants involving two cabinet
ministers.
Jurisdiction of the High Court
"The term "jurisdiction" was defined in the case Miyanda v The High Court (S.C.Z. Judgment 5 of 1984) [1984]
ZMSC 7 (17 June 1984) at page 64. In the one sense, it is 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 cognisance of
matters presented in a formal way for its decision. The limits of authority of each of the courts in Zambia
are stated in the appropriate legislation. Such limits may relate to the kind and nature of the actions and
matters of which the particular court has cognisance or to the area over which the jurisdiction extends, or
both. The High Court has, subject to Article 128-
▪ Unlimited and original jurisdiction in civil and criminal matter.
The jurisdiction of the High court on the other hand is not so limited; it is unlimited but not limitless since
the court must exercise its jurisdiction in accordance with the law as held in the case of. The expression
"unlimited jurisdiction" should not be confused with the powers of the High Court under the various laws.
As a general rule, no cause is beyond the competence and authority of the High Court; no restriction applies
as to type of cause and other matters as would apply to lesser courts.
As in Zambia National Holdings Limited and United National Independence Party v. The Attorney-General (1994) S.J.
22 (S.C.), the High Court is not exempt from adjudicating in accordance with the law including complying
with procedural requirements as well as substantive limitations such as that one find in mandatory sentences
or other specification of available penalties or, in civil matters, the types of choice of relief or remedy
available to litigants under the various laws or causes of action.
▪ Appellate and supervisory jurisdiction, as prescribed
Certain laws give the High Court supervisory jurisdiction on other specific areas. For example, a provision
in the Constitution allows a party to bring a question of fundamental rights, originally raised in a subordinate

11
court, to the High Court for adjudication. The transfer powers of the High Court, to bring a case before it
or to move the case from one subordinate court to another, also give the High Court considerable control
over the lower courts. The High Court shall have jurisdiction to hear and determine appeals in civil and
criminal matters.
It was held in the case of Mwanza v The People (1976) Z.R. 154 that there are four ways in which the decision
of a Magistrate’s Court can be supervised. Namely, by
i. appeal or case stated;
ii. committal to the High R6 Court for sentence;
iii. review; and
iv. confirmation of sentence.
The Court shall be a Superior Court of Record.
The appellate power applies also to tribunals. Under section 16 of the Lands Tribunal Act 2010 states that a
person aggrieved with the decision of the Tribunal may, within thirty days of the receipt of its decision,
appeal to the High Court. Under section 35(1) the Rating Act No. 21 of 2018, a party aggrieved by an award
or decision of the Tribunal may appeal to the High Court within thirty days of the award or decision
▪ Jurisdiction to review decisions, as prescribed.
Article 134(b) of the Constitution provide for the power of the High Court to review decisions of Constitution
bearers. It further provides for supervisory power to public office holders. For instance, the decision of
Director of Public Prosecution is reviewed by the High Court. The subordinate courts, in general, are
subject to the supervision and control of the High Court as to most matters. No one is beyond the reach
of the High Court.
Order 39 Rule 1 and 2 of the High Court Rules are only applicable to a Judge of the High. The application for
review is made pursuant to Order 39 Rule 1 and 2 of the High Court Rules which is couched in the following
terms:
1. Any Judge may, upon such grounds as he shall consider sufficient, review any Judgment or decision
given by him (except where either party shall have obtained leave to appeal, and such appeal is not
withdrawn), and, upon such review, it shall be lawful for him to open and rehear the case wholly
or in part, and to take fresh evidence, and to reverse, vary or confirm his previous Judgment or
decision:
2. Any application for review of any Judgment or decision must be made not later than fourteen days
after such Judgment or decision. After the expiration of fourteen days, an application for review
shall not be admitted, except by special leave of the Judge on such terms as seem just.
The broad supervisory and revisory powers in the High Court and the Supreme Court do provide, often, a
means of correcting lower court error. This does not however, provide an ultimate solution, it can only act
as an occasional corrective measure. Not all cases are appealed without benefit of counsel many parties may
not know of, or may decline to take advantage of avenues of appellate review. The cases which come to a
higher court's attention by other means can only represent a sampling of the activity of lower courts. Many
cases, therefore, never obtain review at all.
Divisions of the High Court
Under Article 133(2) the following are established, as divisions of the High Court,
1. Industrial Relations Court
2. Commercial Court
3. Family Court
4. Children’s Court
5. Economic and Financial Crimes
Procedure

12
Section 10 of the High Court Act: The jurisdiction vested in the Court shall, as regards practice and procedure,
be exercised in the manner provided by the High Court Act and the Criminal Procedure Code, or by any other
written law, or by such rules, order or directions of the Court as may be made under the Act, or the said
Code, or such written law, and in default thereof in substantial conformity with the law and practice for the
time being observed in England in the High Court of Justice.
One can resort to the White Book 1999 Edition if there is lacuna in the law. To reinforce this argument, in
the case of Ruth Kumbi v Robinson Kaleb Zulu S.C.Z Judgment No. 9 of 2009 it was held that:
“Now by statute, the Zambian courts are bound to follow all the rules and procedure followed in England as stated in
the 1999 edition of the white book. The entire provisions of the Rules of the Supreme Court as expounded in the white
book, 1999 edition, including the decided cases, are now Zambian law by statute and as such binding on the Zambian
Courts”.
It was further clarified that English practice and procedure rules only apply in so far as there is a lacuna in
our rules or practice and procedure. We do not resort to English practice and procedure when our own
rules and procedures are clear and comprehensive in Chikuta v Chipata Rural Council (1974) Z.R. 241.

3.1.4.1 Industrial Relations Court

Established in 1993 as an independent to the High Court until an amendment was made which incorporated
it as a division of the High Court. It is governed by the Industrial Relations Court Rules. Rules of the High
Court does not apply to the IRC. For example, section 185 of the IRC states that the Court shall not apply
the rules of evidence and it cannot be binding
Jurisdiction The Court has original and exclusive jurisdiction in all industrial relations matters such as:
▪ inquiring into and making decisions in collective disputes
▪ interpreting the terms of collective agreements and recognition agreements, and
▪ generally adjudicating upon any matter affecting the collective rights, obligations and privileges of
employees, employers and representative organizations.
Composition
The court is composed of:
▪ A Chairman
▪ Deputy Chairmen; and
▪ Not more than ten members as the Minister of Labour may appoint
The Chairman and Deputy Chairmen shall have the same tenure and security of office as a Judge of the
High Court
Who may institute a complaint?
▪ Employees including former employees of any category excluding those employed in the Zambia
Defence Force, Zambia Police Service
▪ Zambia Prisons Service, Zambia Security Intelligence Service, Judges, Registrars of the Court and
Magistrates of the Subordinate and Local Courts.
▪ A person under the age of 21 must be assisted by his/her parents or legal guardians.
▪ Members and officers of a trade union.
▪ A trade union

13
Against whom may a complaint be instituted?
Against employees, employers and trade unions.
What matters are excluded from the jurisdiction of the court?
All cases not founded on an employee/employer relationship.
Are you compelled to institute your case in the Industrial Relations Division (IRD)?
Except for cases concerned with the activities of trade unions you may choose to institute the claim in the
Local Court, or the Subordinate Court, depending on the amounts of compensation etc. that you may wish
to be awarded.
Legal representation and assistance in the preparation of your claim.
▪ Representation by a lawyer is allowed.
▪ A Union representative can represent you.

3.1.4.2 The Commercial Division

The Commercial Division is one of the Divisions of the High Court of Zambia. It is established pursuant
to Article 133(2) of the Constitution of Zambia, as amended by Act No. 2 of 2016. The Division is specialized at
resolving cases arising from commerce, trade, industry and any transactions of a business nature. It is a fast-
track Court for the business community.
The processes and procedures of the Division are provided for in the High Court Act, Chapter 27 of the
Laws of Zambia. Due to it is a fast-track nature, the Rules of the Commercial Court are stringent so that
matters coming to the Court are disposed of quickly. These special Rules of the Court are found under
Order LIII of the High Court Rules, Chapter 27 of the Laws of Zambia. The Rules have strict time frames
within which certain actions and steps should be taken. Order LIII has sanctions which are meant to make
the parties move with all the speed required to dispose of the cases as quickly as possible.
The Court began its operations as a List of the High Court at Lusaka in 2000 and its Judges started circuiting
Kitwe in 2015. In January, 2017, a resident Judge was permanently deployed at Kitwe. Therefore, since its
establishment as a Division of the High Court, the Commercial Court has been operating at Lusaka and
Kitwe and anyone wishing to commence a commercial action in Zambia can file at any of the two Registries.
The Chief Justice designates a Judge-in-charge and other Judges of the Court. For its day-to-day affairs, the
Court is administered by the Registrar who superintends over the support staff. Being a business Court,
Order LIII Rule 11 allows a Judge of the Court to determine if the cause of action is suitable for inclusion
or exclusion in the Commercial Division.
Amongst the pertinent and peculiar procedures in the Commercial Division are that each statement of claim
or counter-claim must state in clear terms the material facts upon which a party relies and must show a clear
cause of action, failing which the statement of claim or counter-claim may be struck out, set aside or the
action may be dismissed. The defence should equally not be a bare denial or a general statement of non-
admission but must specifically traverse every allegation of fact otherwise it will be deemed to be an
admission. The process in the Court is also fully judge-driven as judges of the Court conducts scheduling
and status (compliance) conferences and whatever directions the judge issues must be adhered to strictly.
Judges also hear all interlocutory applications in this Court.
Further, in order fast-track the proceedings, filed witness statements are treated as evidence-in-chief of the
witness as they contain all the facts relevant to the party’s case thereby serving time. The Rules are very
strict on adjournments as they provide that a Judge shall not grant an application for an adjournment except
in compelling and exceptional circumstances. In the Commercial Division, failure to attend a hearing
without justifiable cause results in the party so absent to be condemned in hearing fees and costs and this

14
may also result in dismissal of an action. A party to an action may also apply to a Judge to dismiss an action
if sixty days elapse without progress being made on the case after the action is filed.
Further, it is a requirement that every interlocutory application in the Court be supported by a list of
authorities and skeleton (brief) arguments, stating the facts and law and copies of authorities relied upon
must be supplied wherever possible. This is all in order to expedite the hearing and the decision making.
The Commercial Division also encourages mediation and arbitration. In order not to delay the mediation
process, the Rules require that thirty days from the date of reference of the case to mediation, the case be
referred back to the trial Judge who shall summon the parties within fourteen days and issue directions on
the schedule of events in the matter.
In order to improve the operations of the Commercial Division, there is established under the rules a
Commercial Users Committee which is a forum for the exchange of ideas or views for making
recommendations for improvement of the Court. At this forum, among other things discussed are trending
issues in commercial transactions and the Committee invites different experts to come and present papers.
At the same meetings, case disposal rates are discussed and stakeholders also bring forward the concerns
from their various industries and even from the members of the public.
Representation on this Committee is drawn from all the Judges of the Commercial Division; two
representatives of the Law Association of Zambia; one representative of the Zambia Association of
Chambers of Commerce and Industry; one representative of the Bankers Association of Zambia; the Chief
Administrator of the Judiciary, members of the public appointed by the Chief Justice and the Court
Registrar who is Secretary of the Committee. This forum ensures that there is continuous interaction with
the stakeholders and regular updates on the activities of the Commercial Division.

3.1.4.3 The Family and Children’s Division

Legal Status
The Family and Children’s Division is a division of the High Court of Zambia established under the
Constitution of Zambia (Amendment) Act number 2 of 2016. The division is in its infancy having been created in
2016. It is headed by a judge in charge based at Lusaka and has district registries in all places of sittings of
the High court. Currently, other than the judge in charge there are no specific judges assigned to it meaning
that all judges in the general list take up and hear matters filed in the division.
As part of its development, a committee to formulate matrimonial causes rules, probate rules and related
laws has been set up. It is headed by the judge in charge and has so far concluded and submitted to the
ministry of justice draft matrimonial causes rules which are awaiting enactment by parliament. The
committee also recently concluded on the first drafts of intestate and testate rules respectively. The
committee is expected to submit the final drafts by September, 2019.
Objectives And Functions of The Court
The current main objective of the division is to establish fully functional courts in all places of sittings of
the High court so as to offer to the public suitable and expedient justice in family and children’s matters.
The Family and Children’s Division exercises jurisdiction in all family and children’s matters exercisable by
the High Court. They include the following:
▪ Petitions for divorce;
▪ Petitions for judicial separation;
▪ Custody of children disputes;
▪ Applications for maintenance orders;
▪ Applications relating to wilful neglect to maintain children;
▪ Applications relating to property adjustment;
▪ Intestate succession disputes;

15
 ▪ Wills and administration of estates;
▪ Affiliation and adoption orders;
▪ Appeals from the Subordinate Courts in all family and children’s matters

3.1.4.4 Economic and Financial Crimes Court

On the 7th of January 2022, the new Chief Justice of the Republic of Zambia, Honourable Dr. Justice
Mumba Malila S.C established a new Division of the High Court, namely, the Economic and Financial
Crimes Court (“EFCC”) pursuant to the Economic and Financial Crimes (Division of Court) Order 2022,
Statutory Instrument No. 5 of 2022 (“SI No. 5”).
The Chief Justice’s Power to Establish a Division of the High Court
The Constitution of Zambia empowers the Chief Justice to constitute specialised divisions of the High
Court to hear specific matters. This constitutional power is equally reflected in the High Court Act which
provides that the Chief Justice may prescribe specialised courts by statutory instrument. Effectively, the
Chief Justice exercised powers legally bestowed on him when he established the EFCC through SI No. 5
as discussed above.
Jurisdiction of the Court
With regard to jurisdiction, that is to mean, the matters that are triable and can be heard by the EFCC, SI
No. 5 provides that the EFCC shall, in addition to the jurisdiction of the Court under the Constitution,
hear and determine matters relating to economic and financial crimes and corruption.
In digesting the jurisdiction of the EFCC above, it is cardinal to note that the EFCC as a specialised court
is established solely for purposes of adjudicating upon matters relating to economic and financial crimes
and corruption. Suffice to state that SI No. 5 also confers powers generally vested in the High Court under
the Constitution on the EFCC. To avoid any doubt, these powers are:
i. unlimited and original jurisdiction in civil and criminal matters;
ii. appellate and supervisory jurisdiction, as prescribed; and
iii. jurisdiction to review decisions, as prescribed.
Number of Judges
This subject is equally within the powers of the Chief Justice. SI No. 5 provides that the EFCC shall consist
of a Judge or such number of Judges as the Chief Justice may determine. The foregoing essentially implies
that it is within the discretionary power of the Chief Justice to determine the number of Judges to adjudicate
or hear a matter before the EFCC.

3.2 THE SUBORDINATE COURTS

The Subordinate Courts are established under Article 120 of the Constitution of the Republic of Zambia, Act No.
2 of 2016. The operations and functions of Subordinate Courts are regulated under the Subordinate Courts
Act, Chapter 28 of the Laws of Zambia which provides for the constitution, jurisdiction and procedures as well
as appeals to the High Court and other matters incidental or connected thereto. Subordinate Courts are
controlled and supervised by the High Court through reviews and appeals.
Composition of The Courts
Subordinate Courts are presided over by Magistrates who are appointed by the Judicial Service Commission
acting in the name and on behalf of the Republican President. Out of 117 districts, there are 64 Subordinate
Courts operating in Zambia. The hierarchy of Magistrates in Zambia is as follows:
▪ Chief Resident Magistrate;
▪ Principal Resident Magistrate;

16
 ▪ Senior Resident Magistrate;
▪ Resident Magistrate;
▪ Magistrate Class I;
▪ Magistrate Class II; and
▪ Magistrates class III.
Functions of the Subordinate Courts
The functions are as provided for under section 17, 19, 20, 21 and 22 of the Subordinate Courts Act, Chapter 28
of the Laws of Zambia and include the following;
▪ To hear and determine civil suits and criminal cases;
▪ To administer oaths and affirmations;
▪ To visit prisons as justices of peace;
▪ To make such orders and decrees as may be required by law; and;
▪ To hear appeals from the Local Courts.
Jurisdiction of Magistrates in Civil Matters
The Subordinate Courts (Amendment) Act, No. 4, of 2018, provides for civil jurisdiction of Magistrates as follows:
▪ Chief Resident Magistrate the maximum of K1, 000, 000.00;
▪ Principal Resident Magistrate the maximum of K900, 000.00;
▪ Senior Resident Magistrate the maximum of K500, 000.00;
▪ Resident Magistrate the maximum of K300, 000.00;
▪ Magistrate Class I the maximum of K150, 000.00;
▪ Magistrate Class II the maximum of K100, 000.00; and
▪ Magistrate Class III the maximum of K75, 000.00.
Jurisdiction of Magistrates in Criminal Matters
Section 7 of the Criminal Procedure Code Chapter 88 of the laws of Zambia provides for the powers of subordinate
courts as follows:
▪ Chief Resident Magistrate maximum of 9 years;
▪ Principal Resident Magistrate maximum of 9 years; ·
▪ Senior Resident Magistrate maximum of 9 years; ·
▪ Resident Magistrate maximum of 7 years; ·
▪ Magistrate Class I maximum of 5 years; ·
▪ Magistrate Class II maximum of 3 years; and ·
▪ Magistrate Class III maximum of 3 years

17
3.3 SMALL CLAIMS COURT
1. Who may institute a claim?
Anyone except registered entities such as companies, corporation or associations.
A person under the age of 21 must be assisted by his/her parents or legal guardians.
2. Against whom may a claim be instituted?

Against anyone, including companies, corporations or municipalities or other entities.

3. What matters are excluded from the jurisdiction of the Small Claims Court?
Claims that exceed the limit of K 75,000.
Claims for damages in respect of defamation, malicious, prosecution, wrongful imprisonment, wrongful
arrest, adultery and seduction.
Claims concerning the validity of a will
Claims concerning the status of a person in respect of his medical capacity.
Claims made under customer law.
Claims in which specific performance is sought without an alternative claim for payment of damages.
Claims against foreign states and consular officers.
4. Are you compelled to institute your case in the small claims court?
No, you may choose whether you want to institute the claim in the small claims court or any other
competent court or any other court such as the Subordinate court.
5. Legal representation and assistance in the preparation of your claim.
Representation by an Advocate is not allowed. You may however, at your own cost obtain prior advice
from an Advocate.
The clerk of court will assist you free of charge to prepare your claims.
6. Interpreter
Any Zambian language may be used in the court. Arrangements with an interpreter must be made with the
court clerk before hand if evidence is to be given in any language other than English.
7. How do I commerce an action in a small claims court?
An action in the small claims court will be instituted by issuing a letter of demand first. The letter of demand
will be addressed to the defendant setting out your claim. This letter of demand will be served you upon
the defendant and an expiry date of fourteen (14) days if he/she does not respond favourably; you will then
be entitled to issue a notice of claim. The clerk of court will assist you to prepare both the letter of demand
and notice of claim and then advise you how best to effect service.
What to take to the clerk of court:
▪ Contract, letter, document or other proof upon which your claim is based or that has regard
thereto.
▪ The defendant’s full name and address (home and business address, if available.) What are the
duties of the clerk of court?

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 ▪ He / She will inform you of the date and time for the hearing of the case.
▪ He /she will issue the notice of claim and hand it to you for service. What do you do with the
notice of claim?
You should serve the notice of claim on the defendant in person. Try to get an acknowledgement of receipt
by having the defendant sign and date a copy of the notice of claim.
OR
You can request the clerk of court to instruct the sheriff to affect the service on your behalf at a fee. What
do you do then?
Where the sheriff has undertaken the service, you must check with the court if the sheriff has filed a
certificate of service with the court. After that, obtain a hearing date from the court. Keep the contract,
letter, document or other proof upon which your claim is based at hand. Inform your witness of the date
and time the case will be heard and arrange for them to be present in court at the appointed date and time.
What do you do when you receive a notice of a claim?
▪ You should immediately see the clerk of court for assistance in responding to it.
▪ The clerk of court will assist you to complete the notice of defence or admission of claim.
▪ If you have a counterclaim, he/she will assist you in completing the notice in respect of your
counterclaim.
▪ He/she will examine the documents you are intends relying upon for your defense or counterclaim
and advise you on which ones to come with to court.
▪ He / she will advise you of the hearing date.
8. Possible to steps by the defendant after receipt of the notice of claim.
He/she may comply with the plaintiff’s claim by offering to the settle the claim.
He/she may deliver a written statement, containing the nature of his defense, and/or his/her counterclaim
and particulars of the grounds on which it is based, to the clerk of court and send a copy thereof the
plaintiffs
9. What do you do if the defendant has satisfied your claim in the meantime?
Supply him with a written receipt
Inform the clerk of court immediately that your claim has been satisfied and you no longer wish to proceed
with the case.
10. What do you do on the appointed date and time of hearing?
You must appear at court in person at the appointed.
Ensure that you have with you all the documents upon which your claim is based.
Ensure that all your witnesses are present
Ensure that you have written proof that the notice of claim was served on the opposing party.
11. Who will preside over the court?
The small claims court will be presided over by commissioners. These persons are qualified lawyers and
have practiced law for a period of not less than five years.
12. The hearing
The court proceedings are informal and simple
No Advocate may appear on your behalf. You will present you case in court

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The commissioner of court will request you state your case.
State facts as concisely as possible.
Answer the questions of the commissioner and submit your supporting documents.
No cross-examination between the parties is allowed. With the commissioner’s permission you may
however, put a few questions to the defendant and vice-versa.
Listen attentively to the defendant’s explanation and once he has finished talking, bring the attention of the
commissioner to any facts which in your opinion he has not presented correctly. After the commissioner
has heard you, the defendant and any witness that may be present, he/she will pass judgment.
13. Review
No appeal may be filed against a judgment or order of the court.
The judgment may be referred to a panel of three (3) commissioners for a review if good cause is shown.
14. Steps following judgment
In case judgment is given against you
The judgment of the court is final, unless some ground for review exists. Settle any order for costs that the
court might make against you. The only possible costs can be those that the opposing part may have
incurred in respect of fees for the sheriff and filing documents.
In case Judgment is given in your favour
The defendant will pay you the amount of the judgment within the period of payment stipulated in
judgment if he has the money available. Give him/her a receipt for the amount immediately. In case the
defendant cannot comply with the judgment forthwith the court ability will investigate his/her financial
position and his/her to settle the judgment debt and costs and make an order that he pays by monthly
installments.
If the judgment debtor fails to comply with the judgment or order of the court. If the judgment debtor fails
to comply with the judgment or order of the court and you want to enforce the judgment or order
concerned, you will be at liberty to file a writ of execution instructing the sheriff to seize his property.

3.4 LOCAL COURTS

The Local Courts in Zambia stand at the bottom of the Judiciary hierarchy and are established by Article
120 (1) of Act No. 2 of 2016, Amended Zambian Constitution. The Local Courts in Zambia are not Courts
of record, but by Sub Article (2) of Act No. 2 of 2016 Amended Constitution, Local Courts shall progressively
become Courts of record.
Historical Background
The Local Courts of Zambia are the successors to the Native Courts which the British set up in Northern
Rhodesia, as elsewhere in Colonial Africa, to administer justice to Africans. The system of Native Courts
originally existed in parallel with the system of English style Magistrate Courts. The Local Courts system in
Zambia were born on 1 October, 1966, when the Native Courts system was abolished.
Act No. 29 of the Laws of Zambia was enacted on 1 October, 1966, to provide for the recognition and
establishment of Local Courts, previously known as Native Courts, to amend and consolidate the law
relating to the jurisdiction of and procedure to be adopted by Local Courts.
Structure of Local Courts

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The Local Courts in Zambia are established according to Grades. Section 5 (1) of the Local Courts Act,
Chapter 29 of the Laws of Zambia, states that; Local Courts shall be of such different grades as may be
prescribed, and Local Courts of each grade shall exercise jurisdiction only within the limits prescribed for
such grade. The Local Courts are divided into two grades, that is, Grade A and B. Grade A Local Court is
presided over by a Principal Presiding Local Court Magistrate and two other Senior Local Court Magistrates
A Grade B Local Court is presided over by a Presiding Local Court Magistrate and one other Local Court
Magistrate.
As of December, 2018, there were a total number of 184 Grade A Local Courts and 345 Grade B Local
Courts, total 529 Local Court distributed Countrywide in all the ten (10) Provinces of Zambia.
Distribution of Local Courts in Zambia
Local Courts being Courts that interface with the most venerable members of the community, they are
located in all remote and urban areas of the Country. In terms of access to justice, there are many Local
Courts in Zambia as compared to all the superior Courts put together, mainly due to the demand by most
community members to litigate through the Local Courts and further that Local Courts are less complicated
to access as compared to superior Courts where mostly its by services of Lawyers
Recognition of Local Courts in Zambia
Recognition or establishment of Local Courts is done in accordance with Section 4 (1) of the Local Courts Act,
Chapter 29 of the Laws of Zambia. The Chief Justice, by Court warrant under his hand, recognize or establish
such Local Courts as he shall think fit and any such Court shall exercise such jurisdiction as may be
conferred by or under the provisions of the Local Courts Act, within such territorial limits as be defined by
such warrant.
Constitution of Local Courts and appointment of Adjudicators
In term of composition of the Court, a Local Court shall consist of a Presiding Magistrate either sitting
alone or with such number of other members as may be prescribed by the Chief Justice in the Court warrant.
Provided that a single Local Court Magistrate shall constitute the Court in the absence of the Presiding
Magistrate.
The appointment of such Local Court Magistrates is done by the Judicial Service Commission for a period
of three (3) years renewable contracts or on permanent and pensionable establishment as the case may be.
The appointments are based on academic qualifications and candidates are selected from among members
of the community familiar with the traditions, customs and culture of a particular area.
Jurisdiction of Local Courts
The Local Courts Act also specifies limits on the territorial jurisdiction of a local court. As to most civil
matters, the court may hear a case if the defendant resided within the court's jurisdiction, or if the cause of
action arose within the court's jurisdiction. A court may only hold proceedings adjudicating rights over real
property, however, if the court has territorial jurisdiction over the situs itself.
In terms of Laws that the Local Courts in Zambia are mandated to administer, Section 12 (1) of the Local
Courts Act, Chapter 29 of the Laws of Zambia, spells out such Laws as follows; Subject to the provision of
the Local Courts Act, Chapter 29 of the Laws of Zambia, a Local Court shall administer.
▪ 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 provision of written law.
▪ 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 Courts, and

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 ▪ The provisions of any written law which such Local Court is authorized to administer under the
provisions of Section thirteen.
Local Court may also handle minor criminal cases, tort and simple contracts as may be directed by the Chief
Justice.

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4 PARTIES TO ACTION
Simeza Sangwa SC, Alem Abraha, Tafesse Habte

The parties to a civil suit which is being considered by a court that is exercising its first instance jurisdiction
are known as plaintiff and defendant. Moreover, parties to a suit considered by appellate court using its
appellate jurisdiction are called appellant and respondent. Plaintiff is a party who makes an allegation and
initiates proceedings in a court of law; whereas, defendant is a person subject to a claim, i.e., a party against
whom a claim is filed.

There is a requirement that applies to a party plaintiff and party defendant as well as to parties that are
brought into a pending suit as intervener, third party defendant, etc. In the first place, all parties participating
in a civil suit should have capacity.

4.1 PLAINTIFF AND DEFENDANT

4.1.1 Plaintiff
Plaintiff is a party who brings action. To be plaintiff, the first requirement is to possess capacity to perform
juridical acts in general. The other requirement is that a person must be the real party interest with regard
to the particular claim or allegation he brings to a court of law against another party. It means that the name
plaintiff should possess the right required to be enforced under the governing substantive law. Only
someone with legal title to the right affected by the defendant’s conduct could sue at law. The requirement
is not that the person is the one who will ultimately benefit from the successful decision made in his favour.
It must be a person who has an immediate stake at a time of filing a case. At a time of filing a case, he
should show that he has a vested interest in the subject matter of a suit.

The reason why the law attaches this requirement to party plaintiff is because a civil suit concerns individual
interest/ right. It is up to a concerned party only to either litigate or abandon a claim. Hence, no other
person could decide to bring action for a real party with interest in a suit. Another reason may also be to
avoid defendant facing two suits over a single cause of action. The person who has an original interest and
another person pursuing his right could bring two suits at different times and this exposes defendant to
two suits.

The determination of whether a person appearing as plaintiff may have a vested interest depends on cases
appearing before a court. One cannot provide an exhaustive list of cases containing a vested interest here.
However, in all cases plaintiffs are expected to indicate a cause of action in their statement of claim. It is
from what is stated in plaintiff’s claims that whether or not a plaintiff has a vested interest in a case can be
decided. As an example, a contract of assignment gives rise to issues of a person with a vested interest.

4.1.2 Defendant
To be considered as a defendant, there must be an allegation made against a person. A person sued must
be the one responsible for the wrongs committed and claims arising therefrom. Thus, a plaintiff should
state the claim he is demanding against defendant. This is because courts are there to settle real disputes
and, hence, if no claim is made against the defendant, he cannot be made a defendant in a suit.

ORDER XIV OF HIGH COURT RULES

Civil proceedings have two parties namely the plaintiff and the defendant. Judicial review proceedings have
the state as the applicant, the one who sues is referred to as an Ex Parte, and the government department
from which the relief is being sought is the defendant.

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The learned Mr Justice Matibini defines a party as:
A person, who on record of the court has commenced a proceeding, has been served with legal process or has been
joined to a cause of action by order of the court. As a general rule, both natural persons and corporate persons (for
example companies and corporations) have the capacity to sue and be sued.
The following people have capacity to sue:
▪ Adult individual above the age of 18 can sue and be sued in own name.
▪ A minor, that is one below 18, can only sue through a next friend and defends through guardian
ad litem.
▪ Non-Compos Mentis, that is mentally disturbed persons, bring actions by and through guardian
ad litem.
▪ Seriously ill or incapacitated persons sue by and through a next friend.
▪ Incorporated companies and bodies corporate can sue and be sued in own name.
▪ Company under receivership sue by and through a receiver who is an agent of the company as that
company has no independent locus standi independent of its receiver.
▪ Company under liquidation can only be sued with leave of the court.
▪ Partnerships sue and can be sued as a firm.
▪ Political Parties and other associations of persons sue and sued as a group or on behalf.
▪ Deceased persons sue and get sued through personal representatives.84
▪ Government departments sue and get sued through the Attorney-General.
The issue of parties is promptly dealt with in this jurisdiction by Order 14 of the High Court Rules and Order 15
of the Supreme Court Practice Rules. In the case of Musa Ahmed Adam Yusuf v Mahtani Group of Companies and
Others it was held that the plaintiff should see that the Defendant is described in the writ by his proper
name.
Minors and patients
(i) Order 80 rule 2 of the Rules of the Supreme Court of England 1965 Edition (the “RSC”) states
that: A person under disability may not bring, or make a claim in any proceedings except by his
next friend and may not acknowledge service, defend, make a counterclaim or intervene in any
proceedings, or appear in any proceedings under a judgment or order notice of which has been
served on him, except by his guardian ad litem.
(ii) Subject to the provisions of these rules, anything which in the ordinary conduct of any proceedings
is required or authorised by a provision of these rules to be done by a party to proceedings shall or
may, if the party is a person under disability, be done by his next friend or guardian ad litem
(iii) A next friend or guardian ad litem of a person under disability must act by a solicitor. The Editorial
notes to order 80 of the RSC provides for persons to which this provision applies. It states that:
“For obvious reasons, it is important that a party involved in legal proceedings who happens to be (1) a minor (i.e.
an infant), or (2) by reason of mental disorder…, incapable of managing and administering his property and affairs
(i.e. a patient), should be protected from instigating ill-advised legal proceedings and should not be prejudiced in the
conduct of the proceedings.”
Quite clearly therefore, a person under disability such as a minor or a patient does not have capacity to
commence proceedings unless they do so through a guardian ad litem or next friend.
In the case of Edmond Richard Hill by Thomas Denny Harcourt Catchpole and Another v Zalbro United Transport
Company Limited and Another (1970) Z.R. 46, the first Plaintiff who was under a disability (suffered an injury
from an accident) sued through his next friend Mr. Thomas Denny Harcourt Catchpole. Similarly, in the
case of Felicitus Mwaba and Queen Mwaba (suing by her father and next friend Leonard Mwaba) and Angela Mwaba
(Suing by her father and next friend) v Mwababu Machisa and another (1987) Z.R. 114, the 2nd and 3rd Plaintiffs
who were minors sued through their father and next friend.
Executors and administrators

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Order 16 of the High Court Rules, Chapter 27 of the Laws of Zambia states that: “Where, after the institution of a
suit, any change or transmission of interest or liability occurs in relation to any party to the suit, or any party
to the suit dies or becomes incapable of carrying on the suit, or the suit in any other way becomes defective
or incapable of being carried on, any person interested may obtain from the Court or a Judge any order
requisite for curing the defect, or enabling or compelling proper parties to carry on the proceedings:
If there be two or more plaintiffs, and one of them die, and if the cause of action shall not survive to the
surviving plaintiff or plaintiffs alone, but shall survive to them and the legal representative of the deceased
plaintiff jointly, the Court or a Judge may, on the application of the legal representative of the deceased
plaintiff, enter the name of such representative in the suit in the place of such deceased plaintiff, and the
suit shall proceed at the instance of the surviving plaintiff or plaintiffs, and such legal representative of the
deceased plaintiff. If no application shall be made to the Court or a Judge by any person claiming to be the
legal representative of the deceased plaintiff, the suit shall proceed at the instance of the surviving plaintiff
or plaintiffs; and the legal representative of the deceased plaintiff shall, after notice to appear, be interested
in, and shall be bound by the judgment given in the suit, in the same manner as if the suit had proceeded
at his instance conjointly with the surviving plaintiff or plaintiffs, unless the Court or a Judge shall see cause
to direct otherwise.
If any dispute arise as to who is the legal representative of a deceased plaintiff, it shall be competent to the
Court or a Judge either to stay the suit until the fact has been duly determined in another suit, or to decide,
before the hearing of the suit, who shall be admitted to be such legal representative for the purpose of
prosecuting the suit. Therefore, an executor or an administrator is the person with the capacity to sue or to
be sued on behalf of the estate of a deceased person. Example is the case of Isaac Tantameni Chali (executor
of the Will of the late Mwala -Vs- Liseli Mwala (1995/1997) Z.R. 199 where the estate of the deceased was
represented by the executor.
Companies
Section 22 of the Companies Act Chapter 388 of the Laws of Zambia states that: “A company shall have, subject
to this Act and to such limitations as are inherent in its corporate nature, the capacity, rights, powers and
privileges of an individual.”
Order 5 rule 6 of the RSC however states that: Except as expressly provided under any enactment, a body
corporate may not begin or carry on proceedings otherwise than by a solicitor. Quite clearly therefore, a
company can sue and be sued in its own name as it has been clothed with the powers and privileges of an
individual under section 22 of the Companies Act. However, a company may only sue and be sued through an
Advocate.
Company in receivership
In the case of Magnum (Zambia) Limited v Basit Quadri (Receiver/Manager) & Grindlays Bank International Zambia
Limited (1982) Z.R. 141 the court held that: “A receiver who was an agent of the company under receivership
was there to secure the interests of the debenture holder and in those circumstances; the company
concerned was disbarred from instituting legal proceedings against its receiver/manager. It would be an
absurd proposition to suggest otherwise. Apart from principles of law, mere common sense would dictate
the argument put forward by Mr. Mumba. If the action was allowed to proceed in its present form, it would
be tantamount to suggesting that the receiver can institute proceedings against himself. Quite clearly, a
company under receivership has no locus standi independent of its receiver. As long as a company continues
to be subjected to receivership, it is the receiver alone who can sue or defend in the name of the company.”
Partners and firms
Order 14 rule 7 of the High Court Rules provides that:

25
“Any persons claiming or being liable as co-partners may sue or be sued in the name of their respective firms (if any); and any
party to an action may, in such case, apply to the Court or a Judge for a statement of the names of the persons who are co-
partners in any such firm, to be furnished in such manner and verified on oath or otherwise as the Court or a Judge may direct.”
Quite clearly therefore, any action by or against persons carrying on business as partners must be instituted
in the name of the firm. Example is the case of Rating Valuation Consortium & DW Zyambo & Associates (suing
as a firm) v Lusaka City Council & Zambia National Tender Board (2004) Z.R. 109.
Unincorporated bodies
In the case of National Milling Limited Company v A. Vashee (Suing as Chairman of Zambia National Farmers
Union) 2000 Z.R. 98 the Court held that an unincorporated association is not a legal person and therefore
cannot sue or be sued. These bodies have to be sued or sue in the name of the representative of such a
body.
In the case of Major Richard Kachingwe (suing in his capacity as National Secretary of the Movement for Multi-Party
Democracy) v Dr Nevers Mumba (2013) Vol 3 Z.R. 17, the Court stated that:
“The legal status of a political party is that it is a club. It is settled that there are three main categories of clubs, namely
(a) a member’s club which is unincorporated and unless otherwise exempted, is normally registered under the Societies
Statutes,
(b) incorporated clubs which are registered under legislation relating to companies; and
(c) proprietary clubs which may be incorporated or unincorporated
Thus, if a club is registered under the Societies Act, it is unincorporated and cannot sue or be sued.
However, there are other types of clubs that maybe incorporated or unincorporated depending on the
statute under which they are registered or established.
In the case of Harry Mwanga Nkumbula and Simon Mwansa Kapwepwe v United National Independence Party (1978)
Z.R 388 the Plaintiffs sued a political party in its own name. The Court stated at page 392 that:
“It is settled principle of common law that an unincorporated body has no legal entity capable of suing or being sued.
It is equally settled principle of law that where numerous persons have the same common interest or defence in a matter,
one or more may sue or be sued or the court may authorise one or more to defend on behalf of or for the benefit of all.”
Clearly therefore, an unincorporated body such as a political party cannot sue in its own name. The
correct mode of commencing an action against such a body is through a representative action.

4.2 REPRESENTATION IN CIVIL SUITS

Representative suit is a suit in which others represent real parties to a suit. Representation is allowed in civil
cases. Parties to a civil case need not appear in person to undertake activities in a court of law unless a court
orders appearance in person. This means representation is a rule in most civil cases, and appearance in
person is an exception. Appearance in person is limited to some cases where a court believes it is necessary
for the proper determination of the suit.
Order 14 of the High Court Rules, Chapter 27 of the Laws of Zambia states that: If any plaintiff sues, or any
defendant is sued, in any representative capacity, it shall be expressed on the writ. The Court or a Judge
may order any of the persons represented to be made parties either in lieu of, or in addition to, the
previously existing parties.
Where more persons than one has the same interest in one suit, one or more of such persons may be
authorised to sue or to defend in such suit for the benefit of or on behalf of all parties so interested.
Order 15 rule 12 (1) of the RSC states that: “Where numerous persons have the same interest in any
proceedings, not being such proceedings as are mentioned in rule 13, the proceeding may be begun, and

26
unless the court otherwise orders, continued, by or against any one of them as representing all or as
representing all except one or more of them.”
In the case of National Milling Limited Company v A. Vashee (Suing as Chairman of Zambia National Farmers
Union) the Court held that where there are numerous persons having the same interest in any proceedings,
the proceedings may begin and unless the court orders, be continued by or against one or more of them
representing all or as representing all except one or more of them.

4.2.1 Proceedings against the State

Section 12 of the State Proceedings Act, Chapter 71 of the Laws of Zambia provides that civil proceedings by or
against the State shall be instituted by or against the Attorney General.

4.2.2 Third party proceedings

Order 14 of the High Court Rules states:
“Where a person has a joint and several demand against two or more persons, either as principals or sureties, it is
not necessary for him to bring before the Court as parties to a suit concerning that demand all the persons liable
thereto, and he may proceed against any one or more of the persons severally or jointly and severally liable. Where a
defendant claims contribution, indemnity or other remedy or relief over against any other person, he may apply to have
such person made a party to the suit.”

4.2.3 Third party notice

(Order 16 rule 1 of the RSC)
1. Where in any action a defendant who has given notice of intention to defend
(a) claims against a person not a party to the action any contribution or indemnity or
(b) claims against such a person any relief or remedy relating to or connected with the
original subject matter of the action and substantially the same as some relief or remedy
claimed by the plaintiff or
(c) requires that any question or issue relating or connected with the original subject matter
of the action should be determined not only as between the plaintiff and the defendant
but also as between either or both of them, then the defendant may issue a notice (Third
Party Notice) containing the statement of the nature of the claim made against him and
as the case may be either of the nature any grounds of the claim or the question or issue
required to be determined
2. A defendant may not issue a third-party notice without the leave of the Court.
3. Where a third-party notice is served on the person against whom it is issued, he shall from the
time of service be a party to the action with the same rights in respect of his defence against the
claim as if he had been sued in the ordinary way by the defendant who issued the notice.
4. The Defendant should then seek third party directions for trial by summons.

4.3 JOINDER OF PARTIES

Joining or joinder of parties multiplies the number of parties and widens the scope of litigation. This gives
rise to conflicting views about it, one in favour and another against it. Joining parties and causes of action
makes parties to pool their resources together and enables them to share costs of pursuing a suit. It also
relieves a burden of court in a sense that a court resolves cases involving many persons or causes of action
by a single suit. Rather than treating related cases separately, the court considers a case of many persons or
a case involving many causes of action in one file. Further, it avoids the possibility of making conflicting
decisions. If suits that can be joined are tried separately, there is a chance of giving contradictory decision
over essentially identical suits. For these and other reasons, the joining of parties is to be favoured and,
hence, a claim for joinder should be granted.

27
On the other hand, joinder is disfavoured since it expands the scope of litigation and consequently causes
delay of proceedings. In addition, it results in embarrassment of the defendant and makes him not to be
able to properly defend himself. For these two reasons, joinder should not be granted.

4.3.1 Joinder of plaintiffs

A joinder occurs when there is need to add a party to the proceedings after the case has already commenced.
Under Order XIV of the High Cort Rules two or more persons may be joined together as parties to the
proceedings only with leave of the court. When allowing the joinder, the court will have to consider the
following factors.
1. Similar facts for questions of law if the persons were to bring the actions separately.
2. If the case arises from the facts.
3. Rights of the parties as pertaining to the relief they are seeking.
4. The relief must arise from the same transaction. What constitutes relief from same transaction is
construed differently.
Where a person has a joint and several demand against two or more persons, either as principals or sureties,
it is not necessary for him to bring before the Court as parties to a suit concerning that demand all the
persons liable thereto, and he may proceed against any one or more of the persons severally or jointly and
severally liable.
Where a defendant claims contribution, indemnity or other remedy or relief over against any other person,
he may apply to have such person made a party to the suit.

4.3.2 Joinder of defendants

Joinder of a defendant cannot be affected after the judgment has already been passed for the purposes of
a judgment alone.
i. Joinder by the court
Refers to process by which a Court orders the inclusion of a new party or parties in an existing legal
proceeding.
ii. Joinder by the plaintiff
If the issue of joinder where there is joint liability by the defendants is raised by the plaintiff, he must seek
leave of the court to join the other party. According to Harmon v Sheffield [1891] 1 QB 453 if there is an
objection to the joinder, it must be made promptly. If the defendants fail to make an application promptly,
he cannot be allowed to do that at trial.

4.4 MISJOINDER
As per Order XIV, Rule 5(2) of the High Court Rules, the Court or a Judge may, at any stage of the proceedings,
and on such terms as appear to the Court or a Judge to be just, order that the name or names of any party
or parties, whether as plaintiffs or as defendants, improperly joined, be struck out.
The power of the court to order a joinder of cases parties is discretionary in the sense that there is no
absolute right. No suit shall be defeated by reason of non-joinder or misjoinder of parties.

4.5 NON-JOINDER AND MISJOINDER OF PARTIES

Order 14 of the High Court rules provides that:
(1) If it shall appear to the Court or a Judge, at or before the hearing of a suit, that all the persons who may
be entitled to, or claim some share or interest in, the subject-matter of the suit, or who may be likely to be
affected by the result, have not been made parties, the Court or a Judge may adjourn the hearing of the suit
to a future day, to be fixed by the Court or a Judge, and direct that such persons shall be made either
plaintiffs or defendants in the suit, as the case may be. In such case, the Court shall issue a notice to such
persons, which shall be served in the manner provided by the rules for the service of a writ of summons,

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or in such other manner as the Court or a Judge thinks fit to direct; and, on proof of the due service of
such notice, the person so served, whether he shall have appeared or not, shall be bound by all proceedings
in the cause: (non joinder).
Provided that a person so served, and failing to appear within the time limited by the notice for his
appearance, may, at any time before judgment in the suit, apply to the Court or a Judge for leave to appear,
and such leave may be given upon such terms (if any) as the Court or a Judge shall think fit. The Court or
a Judge upon the application of any party may give directions for service upon a new party of copies of any
writ of summons or other document or process and also may give such other directions in relation to the
adding of such new party as justice and the circumstances of the case may require.
The Court or a Judge may, at any stage of the proceedings, and on such terms as appear to the Court or a
Judge to be just, order that the name or names of any party or parties, whether as plaintiffs or as defendants,
improperly joined, be struck out (Misjoinder).
No suit shall be defeated by reason of non-joinder or misjoinder of parties
Thus Order 14 (5) (1) relates to non-joinder whilst Order 14 (5) (2) relates to misjoinder of parties. The
Supreme Court in The Attorney-General v Tall and Zambia Airways Corporation Limited (1995/1997) Z.R. 54 held
as follows regarding joinder of parties:
“The words ‘at or before the hearing of a suit’ in Order 14, Rule 5 of the High Court Act Cap 50 mean ‘before
delivery of a judgment in a suit’ and joinder can validly occur before judgment has been delivered
Words of Order 15, Cap 50 too restrictive, but court has jurisdiction and discretion to order a party to be
joined in the interests of justice. Both Order 14, the English Order 15, as well as section 13 of Cap 50, are
intended to avoid a multiplicity of actions.”
The Supreme Court stated in that case
“In our view, a true construction of the words " at or before the hearing of a suit" as contained in our order 14 of Cap.
50 mean or must be interpreted to mean before the delivery of a judgment in a suit. This to us appears to be the only
reasonable interpretation of that phrase in the order because the delivery of a judgment is a hearing of and a process of
a suit. It follows therefore that in a proper case a Court can join a party to the proceedings when both the plaintiff and
the defendant have closed their cases and before judgment has been delivered by invoking order 14 rule 5.”
However, the Supreme Court in London Ngoma and Others v LCM Company Limited and United Bus Company of
Zambia Ltd (Liquidator) (1999) Z.R. 75 on the authority of the Attorney General v Tall cited above held: “…In
terms of rule 67 of the Supreme Court rules and the decided case of the Attorney General v Tall and Another, the court has
inherent jurisdiction to join a party to the action after judgment has been entered.”
Therefore, a party seeking to join another party to an action must satisfy the Court by affidavit that:
1. The party to be joined has an interest in the matter or;
2. There is a question or issue that exists arising out of or connected with the relief or remedy claimed
in the cause or matter as between the party to be joined and any party to the cause or matter;
3. He is likely to be affected by the results.
In the case of Mike Hamusonde Mweemba v Kamfwa Obote Kasongo and Zambia State Insurance Corporation Limited
(2006) Z.R. 101 it was held that: “A Court can order a Joinder if it appears to the Court or a Judge that all persons who
may be entitled to or claim some share of interest in the subject matter of the suit or who may be likely to be affected by the
result require to be joined.”

4.6 ALTERATION OF PARTIES

Order 16 of the High Court Rules states:

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 “(1) Where, after the institution of a suit, any change or transmission of interest or liability occurs in relation to any
party to the suit, or any party to the suit dies or becomes incapable of carrying on the suit, or the suit in any other way
becomes defective or incapable of being carried on, any person interested may obtain from the Court or a Judge any
order requisite for curing the defect, or enabling or compelling proper parties to carry on the proceedings:”
Order 16 of the High Court Rules is used after the institution of the suit:
i. there is any change or transmission of interest or liability in relation to any party to the suit;
ii. a party to the suit dies or becomes incapable of carrying on the suit; or
iii. the suit becomes defective or incapable of being carried on.

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5 PLEADINGS
Simeza Sangwa SC, William B. Odgers

The proceedings in a court of law are set in motion when a court accepts the pleadings filed by a plaintiff
and orders the defendant to appear and defend. Generally defined, Pleadings mean all formally written
statements filed to a court of law by parties to a suit with respect to their respective claims and/or defences.

Pleadings serve various purposes. The following are the main ones.

a.
They provide the defendant with notice of the suit and enable him to prepare his defences
accordingly. This is because a copy of the statement of claim filed by the plaintiff will be served to
the defendant together with summons.
b. They provide a summary of the claims and defences of parties to a court, which enables a court to
frame the appropriate and relevant issues that need decision. The court looks into the content of
both the statement of claim and statement of defense; and, then, frame appropriate issues that need
to be resolved by the court at the trial of the case.
c. They fix the issues to be decided, and in a way, limit the scope of litigation between parties and
determine the evidences to be used by the parties. The court cannot create issues of its own and
then pass decision. It is based mainly on pleadings of parties that the court tries to frame issues.
d. They guide the parties and the court in the conduct of cases. A litigant cannot prepare for trial
unless he has been informed adequately of the opponent’s contentions. There is no way that a
court can control a suit unless it knows the nature of the parties‟ allegations.
e. They try to expedite litigation. This is particularly realized when the rules on them are employed
properly by parties and the court. Hence, all the rules on pleadings shall be used to achieve this
purpose.
ORDER 18 RSC 1999
The main objective of pleading was stated in Thorp v Holdsworth (1876) 3 CH. 637. The whole object of
pleadings is to bring the parties to an issue. It went on to say that pleadings are there to prevent the issues
from being enlarged. It is to narrow the parties to definite issues, thereby diminishing the expenses and
delay as regards the amount of testimony required by either party at the hearing.
Pleadings will define the issues which are to be determined by the court. In Gunde v Msiska 2 ALR (Mal)
465. This buttressed the point that what has been pleaded should match your evidence. Drafting pleadings is like building a
foundation as a result due diligence is required. Pleadings contain statements of fact, particular of the facts, allegations of facts.

5.1 MATTERS WHICH MUST BE SPECIFICALLY PLEADED

Under Order 18, Rule 8 of Rules of Supreme Court of England 1999 Edition a Party must in any pleading
subsequent to statement of claim plead specifically any matter, for example,
a. any relevant statute of limitation
The Law Reform (Limitation of Actions, Etc.) Act is instructive under section 3 that where the damages claimed
by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of
personal injuries to any person, this subsection shall have effect as if for the reference to six years there
were substituted a reference to three years.
Rationale Of Limitation
Period Limitation period is justified for the following reasons:

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 i. Interest reipublicae ut sit finis litium-the interest of the state requires that there must be a limit to
litigation,
ii. Because of the unfairness to a defendant, if matters could be litigated many years after they have
occurred;
iii. Vigilantibus non dormientibus jura subveniunt-the law aids the vigilant and not those who slumber,
iv. As time lapses evidence deteriorates.
b. Fraud
The White Book, provides sufficient guidance on how fraud should be dealt with in pleadings. Order
18/8/8 of the 1997 edition of the Rules of The Supreme Court states as follows on how fraud should be
pleaded:
"(9) Fraud - It is the duty of counsel not to enter a plea of fraud on the record "unless he has clear and sufficient evidence to
support it" - (see per Lord Denning in Associated Leisure Ltd v. Associated Newspapers Ltd [1970) 2Q.B. 450, p.456).
Any charge of fraud or misrepresentation must be pleaded with the utmost particularity."
Para 18/12/7 RSC states that "Fraudulent conduct must be distinctly alleged and as distinctly proved, and it is not
allowable to leave fraud to be inferred from the facts (Davy v. Garett (1878) 7 Ch. D. 473, p.489; Behn v. Bloom (1911)
132 L.T.J. 87; Claudins Ash Sons & Co. Ltd. Invicta Manufacturing Co. Ltd 29 R.P.C. 465 H.L)."
"(5) Concealed fraud - when a pleader seeks to avoid the Limitation Act 1980 by pleading concealed fraud under s.32, he
must state his case with the utmost particularity, or the pleading may be struck out under r.19 or under the inherent
jurisdiction of the Court... The fraud alleged must be the fraud of the person setting up the Statute or of someone through
whom he claims...
It is bad practice to try and elicit fraud in examination in chief and hope that it will not be objected to so
that the court can consider it. A plea of fraud is a very serious allegation which requires a higher standard
of proof. That is why in Sithole v The State Lotteries Board it was held that if a party alleges fraud the extent of
the onus on the party alleging is greater than a simple balance of probabilities.
c. any fact showing illegality
More specifically, Order 18, rule 8 requires ‘any fact showing illegality’ to be pleaded; in this case, the invalidity
of the agreement resulting from the failure to comply with the statute
d. Damages
The case of D.G Mpundu v Attorney General read together with the case of Perestrello E Companhia Limitada v
United Paint Co. Ltd, wherein it was said at page 579, letters D and E-
"a statement of claim must state specifically the relief or remedy claimed. It follows that the necessity of pleading 'damage'
(meaning injury) or 'damage' (meaning the amount claimed to be recoverable), if it arises at all, does so as an example
of the general requirement of any statement of claim that it shall 'put the defendants on their guard and tell them what
they have to meet when the case comes on for trial' (per Cotton, L.J., in Philipps v Philipps. Accordingly, if a plaintiff
has suffered damage of a kind which is not the necessary and immediate consequence of the wrongful act, he must warn
the defendant in the pleadings that the compensation claimed will extend to this damage, thus showing the defendant the
case, he has to meet and assisting him in computing payment into court.''
These pleas must be specifically expressed in the defence (including a defence to counterclaim), reply or subsequent pleading.
As the requirements imposed by rule 7(1) apply to ‘every pleading’, the response pleas contemplated by rule 8(1) must,
as in the case of the allegations in the statement of claim, be stated ‘in a summary form of the material facts on which the
party pleading relies for his claim or defence’. Evidence is not permitted and ‘the statement must be as brief as the nature
of the case admits’

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Pleading the relief being sought, the plaintiff must also plead his damages; general damages need not be
specifically quantified. But there should be an averment that the plaintiff claims general damages. If the
claim is for personal injuries the injuries themselves must be itemized. Any loss of amenities should also be
pleaded. Where the plaintiff is claiming that he has suffered damages of a kind which is not the immediate
consequence of the wrongful act, he must plead full particulars to show the nature and extent of the damage.
Subject to this Rule, every pleading must contain, and contain only, a statement in a summary form of the
material facts on which the party pleading relies for his claim or defence, as the case may be, but not the
evidence by which those facts are to be proved, and the statement must be as brief as the nature of the case
admits.
e. Material facts
The facts pleaded must be material to the case. The word material was explained as to mean necessary for
formulating a complete cause of action and if one material fact is omitted the claim is bad. In Philips v Philips
[1878] 4 QB 127 there was a dispute for possession of land between the parties. In the statement of claim,
the plaintiff only made referred to wills, documents, and Crown Grants in possession of the defendant
without further describing them. The court held that it is essential that the pleading, should state those facts
which will put to the defendants on their guard and tell them what they have to meet when the case comes
in for trial otherwise it will be embarrassing to the defendants and is liable to be struck out.
f. The law upon which the case is founded
The statement of claim must disclose whether the action is founded upon contract or tort and if it is
founded on tort, the statement must disclose whether the suit is based on intention or negligence. However,
there is no need for further classification of the tort apart from stating that it was intention or negligent.
Evidence should not be averred, evidence available to prove the material fact need not be set out in the
statement of claim.
In William v Wilcox it was held that it is an elementary rule of pleading that when a statement of fact is relied
upon, it is enough to allege it simply without setting out the subordinate facts which are the means of
proving it or the evidence sustaining the allegation.

5.2 SETTING ASIDE PLEADINGS

Sets out a number of grounds for attacking pleadings. One of which is where the pleadings do not disclose
a reasonable course of action. In the case of Drummond – Jackson v British (1970) 1 All ER outlines what is
not reasonable course. Where it is scandalous, frivolous, and vexatious; may embarrass the fair trial of the
case; Abuse of court process.
i. Frivolous, Vexatious
Here brings the attention of the case of Murray v Epson Local Board (1897) 1Ch 35, It was held by the court
that,
'scandalous' generally refers to matters which improperly cause derogatory light on someone, usually a party to an
action, with respect to moral character or uses repulsive language
ii. Embarrass
The court considered the principles established in Knowles v Roberts (1888), which emphasized the need for
informed consent in legal matters. The court’s discretion to strike out pleadings as unnecessary or
embarrassing was also relevant
iii. Abuse of court Process
Metropolitan Bank v Pooley (1885) 10 AC 210
Can the court on its own motion throw out pleadings or should wait for the other party to object?

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Lawrence v Norres (1890) 15 AC 210
This case allows that a court can on its own motion struck out pleadings but should rarely exercise such
powers

5.3 MAJOR TYPES OF PLEADINGS

1. Statement of Claim: Requirements and Contents
Statement of claim is a pleading submitted to a court by plaintiff. It is also known as a complaint. The
technical requirements we discussed earlier are applicable to a statement of claim. The following are some
of the rules that apply to Statement of Claim:16
▪ only state facts and not evidence;
▪ carefully consider the parties to the claim;
▪ only include causes of action which existed at the date of the writ;
▪ specifically state for the relief claimed;
▪ should have separate and distinct paragraphs consecutively numbered;
▪ dates, sums and other numbers should be expressed in figures and not words;
▪ it must be dated; and
▪ it must be indorsed.

2. Statement of Defense: Purposes and Contents

Statement of defense is a pleading produced by the defendant. It is the pleading that contains material facts
on which the defendant relies for his defense. It is that which is put forward to diminish the plaintiff’s cause
of action or defeat recovery.
Odgers guides that:
The defendant’s counsel, before drafting the Defence, should always carefully consider the Statement of Claim,
and the way in which the action is shaped against his client. Is any cause of action shown at all? Is the only
cause of action shown frivolous and vexatious? If so, he may think it right to apply to strike out the Statement
of Claim.17
The statement of defense has mainly two parts. One is caption in which the defendant is supposed to state
the name of the court to which he submits his defense, and the number of the suit. The other part of the
statement of defense is the statement showing the points of defense. In this part, the defendant is expected
to raise affirmative grounds of defense, which include facts showing that the claim of the plaintiff is
inadmissible on the ground that he is incapable, or that the court lacks jurisdiction or that the action is
barred by period of limitation, etc. Apart from these grounds, the defendant can raise any ground of
objections to a suit. In addition, the defendant can raise a counterclaim or set off against the claim of the
plaintiff.
3. Reply
In its general sense, a reply is the plaintiff’s answer to the defendant’s sett-off or counterclaim.130
Thus, if a claimant wishes to respond to facts raised in the defence he or she must do so by way of a
Reply.18
4. Counter-Claim

16
Odgers at pp.170-191 and Order 18/14/1 of the RSC
17
Odgers at p.192
18
O’Hare, J. and Browne, K. (2005). O’Hare and Browne Civil Litigation, 12th Edn., London: Sweet & Maxwell.
pp.130-131

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If the defendant wishes to bring an action against the claimant it is usually best to do it by way of
counterclaim. The counterclaim should form part of the defence. When a counterclaim has been raised,
the claimant must file a defence as otherwise default judgement is usually available. In order to enter
default judgement, the defendant has to prove the counterclaim was served and where the defendant
effected service of the document, he or she must file a certificate of service.
5. Defence to Counter-Claim
As alluded to above, a defence to counterclaim is entered if the there is a counterclaim entered. Where
a counterclaim has been pleaded, a Reply thereto shall be subject to the rules applicable to Statements
of Defence.

5.4 EFFECTS OF FAILURE TO PLEAD

A party pleading is supposed to plead all the claims arising from a single cause of action. Issues are framed
on the basis of allegations made in the statement of claim. If a claim is not included in the pleading, it is
not put in issue by a court. Hence, the plaintiff is not entitled to raise this at a trial stage and produce
evidence to prove it. This is because the other party is not aware of such issue and cannot get the chance
to challenge it. If the plaintiff raises a new issue at a trial, the defendant is entitled to object to it.
Failure to plead means that the plaintiff omits some facts he could have alleged. The remedy for failure to
plead at the beginning is to request an amendment of pleading. In the absence of permission to amend the
pleading, the plaintiff is not allowed to raise new issues at a trial and introduce evidence unless the court
frames issues by its own motion.
Failure to plead produces effect if the defendant raises it. However, if the defendant fails to object to a new
issue raised by the plaintiff at a trial, it means that he consents to the trial of that issue. In other words, it
means that the defendant is not prejudiced by the trial of such a new issue. Hence, it is considered as if
raised by the plaintiff at the time he filed his case to a court.
Failure to deny means that the defendant is not replying to some points of defense against the claim of the
plaintiff. Denial should be specific. If the defendant fails to respond to every allegation contained in the
statement of defense, it means that he is indirectly admitting it. Hence, if certain points of defense are not
raised by the defendant in the statement of defense, he cannot raise them at a trial.

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6 AFFIDAVIT

S. Parameswaram, John Levington

ORDER V OF THE HIGH COURT RULES

Use of Affidavits
The sole purpose of an affidavit is to give evidence in the particular cause of action or matter. In any cause
of action begun by originating summons, originating motion or petition and in any application made by
summons or motion, evidence may be given by an affidavit unless these rules provide otherwise or court
directs otherwise.
Order V, Rule 15 of the High Court Rules, Chapter 27 of the Laws of Zambia, which provides thus:
“An affidavit shall not contain extraneous matter by way of objection or prayer or legal arguments or conclusion.”
In which Causes of Action can Affidavit Evidence be Used
Affidavit evidence can be used both in originating process and interlocutory applications. Such originating
processes include
i. originating summons,
ii. originating motions,
iii. petitions which is mandatory and
iv. writ of summons which can be used upon court order.

6.1 FORM OF AFFIDAVITS

Under Order V Rule 20 of the High Court Rules, the following rules shall be observed by Commissioners and
others before whom affidavits are taken:
a. Every affidavit sworn in a cause or matter must be entitled in that cause or matter;
b. every affidavit must be expressed in the first person and must state the place of residence of the
deponent and his occupation and if the deponent is giving evidence is a professional capacity, the
affidavit may state the address at which he works, the position he holds and the name of the firm;
c. every affidavit must be bound in book form and the printed side of the paper must be numbered
consecutively;
d. every affidavit must be divided into paragraphs numbered consecutively; each paragraph being
confined to a distinct portion of the subject;
e. dates, sums and other numbers must be expressed in an affidavit in figures and not in words;
f. Every affidavit must be signed by the deponent and the jurat must be completed and signed by the
person before whom it is sworn.
g. Any commissioner for oaths before whom any oath, affirmation or affidavit is made or taken shall
state truly in the jurat or attestation at what place and on what date the oath, affirmation affidavit,
or declaration is made or taken as per section 5 of the Commissioners for Oaths Act cap 33.
h. Where the witness is illiterate or blind, it shall state the fact, and that the affidavit was read over
(or translated into his own language in the case of a witness not having sufficient knowledge of
English), and that the witness appeared to understand it.
i. The Commissioner shall not allow an affidavit, when sworn, to be altered in any manner without
being re-sworn. The Commissioner may refuse to allow the affidavit to be re-sworn, and may
require a fresh affidavit.

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6.2 DECLARATIONS WITHOUT OATH
The Commissioner may take, without oath, the declaration of any person affirming that the taking of any
oath whatsoever is, according to his religious belief, unlawful, or who, by reason of immature age or want
of religious belief, ought not, in the opinion of the Commissioner, to be admitted to make a sworn affidavit.
The Commissioner shall record in the attestation the reason of such declaration being taken without oath.
Use of affidavits in interlocutory proceedings
What are interlocutory proceedings?
These are applications which do not decide the rights of the parties but are made for the purpose of keeping
things is status quo till the rights can be decided or for the purpose of obtaining some direction of the court
as to how the cause is to be conducted.

6.3 CONTENTS OF AN AFFIDAVIT

An affidavit sworn for the purposes of being used in interlocutory proceedings may contain statements of
information or belief with sources and grounds thereof.
Where an affidavit is made by two or more deponents, the names of the persons making the affidavit must
be inserted in the jurat except that if the affidavit is sworn by both or all the deponents at one time before
the same person, it shall be sufficient to state that it was sworn by both or all the above-named deponents.

6.4 AFFIDAVIT BY BLIND OR ILLITERATE PERSONS

Where it appears to the person administering the oath that the deponent is illiterate or blind, he must certify
in the jurat that;
a. The affidavit was read in his presence to the deponent;
b. The deponent seemed perfectly to understand it; and
c. The deponent made his signature or mark in his presence and the affidavit shall not be used in
evidence without such a certificate unless the court is otherwise satisfied that it was read to and
appeared to be perfectly understood by the deponent.

6.5 SCANDALOUS MATTER IN THE AFFIDAVIT

The court may order to be struck out of any affidavit any matter which is scandalous, irrelevant or otherwise
oppressive. An affidavit must be pertinent and material and may be ordered to be taken off the file if
scandalous and irrelevant matter is inserted or a scandalous matter may be expunged.

6.6 ALTERATIONS IN AFFIDAVITS

An affidavit which has in the jurat or body thereof any interlineations, erasure or other alteration shall not
be filed or used in any proceeding without the leave of the court unless the person before whom the affidavit
was sworn has initiated the alteration and in the case of an erasure has re-written in the margin of the
affidavit any words or figures written on the erasure and has signed or initiated them.

6.7 WHO CAN BE THE COMMISSIONER

No affidavit shall be sufficient if sworn before the solicitor of the party on whose behalf the affidavit is to
be used or before any agent, partner or clerk of that solicitor.

6.8 RULES IN TAKING AFFIDAVITS

Order 5 rule 20 of the High Court Rules sets out rules for taking affidavits: “The following rules shall be observed
by Commissioners and others before whom affidavits are taken:
(a) Every affidavit taken in a cause or matter shall be headed in the Court and in the cause or matter.

37
 (b) It shall state the full name, trade or profession, residence and nationality of the witness.
(c) It shall be in the first person and divided into convenient paragraphs, numbered consecutively.
(d) Any erasure, interlineation or alteration made before the affidavit is sworn shall be attested by the
Commissioner, who shall affix his signature or initials in the margin immediately opposite to the
interlineation, alteration or erasure.
(e) Where an affidavit proposed to be sworn is illegible or difficult to read, or is, in the judgment of
the Commissioner, so written as to facilitate fraudulent alteration, he may refuse to swear the
witness, and require the affidavit to be re-written in an unobjectionable manner.
(f) The affidavit shall be signed by the witness (or, if he cannot write, marked by him with his mark in
the presence of the Commissioner).
(g) The jurat shall be written, without interlineation, alteration or erasure (unless the same be initialled
by the Commissioner), immediately at the foot of the affidavit, and towards the left side of the
paper, and shall be signed by the Commissioner. It shall state the date of the swearing and the place
where it is sworn It shall state that the affidavit was sworn before the Commissioner or other
officer taking the same. Where the witness is illiterate or blind, it shall state the fact, and that the
affidavit was read over (or translated into his own language in the case of a witness not having
sufficient knowledge of English), and that the witness appeared to understand it. Where the witness
makes a mark instead of signing, the jurat shall state that fact, and that the mark was made in the
presence of the Commissioner. Where two or more persons join in making an affidavit, their
several names shall be written in the jurat, and it shall appear by the jurat that each of them has
been sworn to the truth of the several matters stated by him in the affidavit.
(h) The Commissioner shall not allow an affidavit, when sworn, to be altered in any manner without
being re-sworn.
(i) If the jurat has been added and signed, the Commissioner shall add a new jurat on the affidavit
being re sworn; and, in the new jurat, he shall mention the alteration.
(j) The Commissioner may refuse to allow the affidavit to be re-sworn, and may require a fresh
affidavit.
(k) The Commissioner may take, without oath, the declaration of any person affirming that the taking
of any oath whatsoever is, according to his religious belief, unlawful, or who, by reason of immature
age or want of religious belief, ought not, in the opinion of the Commissioner, to be admitted to
make a sworn affidavit. The Commissioner shall record in the attestation the reason of such
declaration being taken without oath.
(l) Every certificate of an exhibit referred to in an affidavit signed by the Commissioner before whom
the affidavit is sworn shall be marked with the short title of the cause or matter.”
Also note that section 6 of the Commissioner of Oaths Act provides that: “Every Commissioner for Oaths before
whom any oath or affidavit is taken or made under this Act shall state truly in the jurat or attestation at
what place and on what date the oath or affidavit is taken or made.” In Chikuta v Chipata City Council (1974)
Z.R. 241 The Supreme Court frowned on the use of affidavits by Counsel to adduce hearsay evidence. The
Court held: “The increasing practice amongst lawyers conducting cases of introducing evidence by filing
affidavits containing hearsay evidence is not merely ineffective but highly undesirable, particularly where
the matters are contentious.”

6.9 DISCONTINUANCE OF ACTION

Order 17 rule 1 of the High Court Rules Chapter 27 of the Laws of Zambia states that: “If, before the date fixed
for the hearing, the plaintiff desires to discontinue any suit against all or any of the defendants, or to
withdraw any part of his alleged claim, he shall give notice in writing of discontinuance or withdrawal to
the Registrar and to every defendant as to whom he desires to discontinue or withdraw. After the receipt
of such notice, such defendant shall not be entitled to any further costs, with respect to the matter so
discontinued or withdrawn, than those incurred up to the receipt of such notice, unless the Court or a Judge
shall otherwise order; and such defendant may apply ex parte for an order against the plaintiff for the costs

38
incurred before the receipt of such notice and of attending the Court or a Judge to obtain the order. Such
discontinuance or withdrawal shall not be a defence to any subsequent suit.
If, in any other case, the plaintiff desires to discontinue any suit or to withdraw any part of his alleged claim,
or if a defendant desires to discontinue or withdraw his counter-claim or any part thereof, such
discontinuance or withdrawal may, in the discretion of the Court or a Judge, be allowed on such terms as
to costs and as to any subsequent suit and otherwise as to the Court or a Judge may seem just.”
Thus, the High Court permits a party to withdraw an action any time before the date set for the hearing.
After the date set for the hearing, one may only discontinue the action with leave of Court. An application
for the grant of leave under this rule may be made by summons or motion.

6.9.1 Effect of discontinuance

1. Order 17 (1) of the High Court Rules Chapter 27 of the Laws of Zambia states that: “…….. Such
discontinuance or withdrawal shall not be a defence to any subsequent suit.
2. Further, order 21 rule 4 of the RSC sets out the effect of discontinuance of suit as follows: “Subject
to any terms imposed by the Court in granting leave under rule 3, the fact that a party has
discontinued an action or counterclaim or withdrawn a particular claim made by him therein shall
not be a defence to a subsequent action for the same, or substantially the same cause of action.
3. Thus, discontinuance cannot be employed by the opposing party as a defence to a subsequent suit.

6.10 WITHDRAWAL OF SUMMONS

Order 21 rule 6 of the RSC states that: “A party who has taken out a summons in a cause or matter may not
withdraw it without the leave of the court.” The explanatory notes to this rule states that: “If the summons
has not been served, leave to withdraw it may be obtained ex-parte from the Practice Master who will
indorse his leave on the summons. If the summons has been served, and the other party consents, leave to
withdraw may also be obtained ex-parte from the Practice Master; but if the consent of the other party is
not obtained or refused, leave to withdraw may only be sought at the hearing of the summons, when the
master will deal with the costs occasioned thereby.”

6.11 DIRECTIONS FOR TRIAL

Order 19 rule 1 of the High Court Rules, Cap 27 provides that the Court or trial Judge shall not later than twenty-
one days after appearance and defence have been filed summon parties to a scheduling conference and give
directions with respect to the following matters:
(a) reply and defence to counter claim, if any;
(b) discovery of documents;
(c) inspection of documents;
(d) admissions;
(e) interrogatories; and
(f) place and mode of trial;
Provided that the period for doing any of these acts shall not exceed fourteen days. Notwithstanding rule
1, the Court may, for sufficient reason, extend the period within which to do any of the acts specified in
rule 1. There is no provision in the High Court Rules which permits any of the parties to a suit to apply for
directions for trial as directions ought to issue at the Court’s instance without being prompted.

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7 DISPOSAL OF MATTER ON A POINT OF LAW
Patrick Matibini, Simeza Sangwa SC

A point of law is a legal dispute or legal question that can only be resolved through application of a legal
principle. An example “he is doli incapax”. One here is raising an issue emanating from the Penal Code, it
has therefore become a point of law. The law which regulates the disposal is Order 14 of the Rules of Supreme
Court of England 1999 Edition.
In the case of China Henan International Cooperation group Company Limited v and Nationwide (Z) Limited (SCZ
selected Judgment No. 8 of 2017). The Supreme Court had this to say:
The preliminary issue that was before the court below was made by way of a notice to raise preliminary issue pursuant
to Order 33 rule 7 of the White Book. The said Order is preceded by Order 33. Rule 3 which permits a court to
determine a preliminary issue before, at or after the trail. Whilst the former gives the court jurisdiction to entertain a
preliminary issue, the latter sets out what steps the court can take where there is merit in the preliminary issue raised
and its determination substantially disposes of the matter.
In terms of how such preliminary issues should be laid before the court, which is in dispute, the explanatory notes to
Order 33 rule 3 sub-rule 1 and Order 14A of the White Book are instructive. The former Order states that Order
33 rule 3 should be read with among other orders, Order 14A. While Order 14A (2) states that applications
tabled before the court for determination of any question of law at preliminary stage may be made by summons or
motion or orally in the course of any interlocutory application to the court. Therefore, the Respondent had a choice of
commencing the application for a preliminary issue either by summons or motion.
It should be appreciated that in general, Order 14A is designed to deal with final disposal of cases on a
point of law, whereas the application herein is purely a preliminary objection within the context of Order
33, Rule 3 RSC. In African Banking Corporation Zambia v Mubende Country Lodge - SCZ Appeal No. 116 of 2016
it was held that Order 33/3 cannot be invoked independently or to the exclusion of the mandatory
requirements under Order 14A.
The Supreme Court in the Mubende case stated as follows:
“The import of Order 33, rule 3 RSC is that a preliminary point of law can be raised at any stage of the
proceedings, including the period before trial. To that extent, we agree with the appellant that the parties need not
wait for setting down the matter for trial before an application to determine a preliminary point of law can be
raised. We should quickly make the point however, that Order 33 rule 3 cannot be invoked independently or to
the exclusion of the mandatory requirements of Order 14A RSC, which require the filing of a notice of intention
to defend as a pre-requisite to raising a preliminary point of law. We stated earlier in this judgment that in the
context of our rules, a notice of intention to defend is the filing of a memorandum of appearance with a defence...”
Motion to set aside writ Order 11 rule 21 of the High Court Rules states:
“A defendant before appearing shall be at liberty, without obtaining an order to enter or entering a conditional
appearance, to take out a summons or serve notice of motion to set aside the service upon him of the writ or of
notice of the writ, or to discharge the order authorizing such service.”
It was heard in the case of Bellamano v Ligure Lombarda Limited (1976) Z.R. 267 that
“An application to set aside a writ for irregularity is not the appropriate procedure in the case of a writ issued without
authority. Where it is the appropriate procedure, the application will not be granted if the applicant has taken any
fresh step in the action after becoming aware of the irregularity. Entering of unconditional appearance is such a fresh
step.”

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7.1 APPLICATION UNDER ORDER 33 RULE 3 OF THE RSC
The Court may order any question or issue arising in a cause or matter, whether of fact or law or
partly of fact and partly of law, and whether raised by the pleadings or otherwise, to be tried before,
at or after the trial of the cause or matter, and may give directions as to the manner in which the
question or issue shall be stated.19
Under this order, the Court can, if necessary, direct that a question or issue shall be stated by or in
the form of a special case. But the parties cannot under the aforesaid rule agree between themselves,
without obtaining the order of the Court, to state questions of law in the form of a special case. Only
such questions of law can properly be raised as preliminary issues as must necessarily arise in the
action and the Court will not decide fictitious questions or questions in which those who are
interested, or are likely to be interested, are not present or are not in esse, and cases there referred
to.20
If it appears to the Court that the decision of any question or issue arising in a cause or matter and
tried separately from the cause or matter substantially disposes of the cause or matter or renders the
trial of the cause or matter unnecessary, it may dismiss the cause or matter or make such other order
or give such judgment therein as may be just as stated under Order 22 Rule 7 of the RSC.
In the case of Major Richard Kachingwe (Suing in his capacity as National Secretary of the Movement for
Multiparty Democracy) v Dr. Nevers Mumba (2013) 3 Z.R. 17; In a ruling on a preliminary issue on a point
of law raised by the defendant urging that the case be summarily dismissed at this stage, pursuant to
Order 14A of the RSC. The ground relied upon was that the action was incompetent and not
properly before the court because it was commenced by the plaintiff after he had been expelled from
membership and with the authority of the Movement for Multi-Party Democracy (MMD), on whose
behalf the action had been purportedly brought. The High Court held: Order 14A of the RSC
provides for disposal of a case on a point of law, by determination of question, of either law or
construction of any document. The only conditions precedent for determining any question under
Order 14A are whether the parties have either had an opportunity of being heard or consented to
an order or judgment on such determination. It is not a condition precedent for raising a preliminary
issue under Order 14A that the facts of the matter must be agreed between the parties to the action.

19
Order 33 rule 3 of the Rules of the Supreme Court of England 1965
20
Explanatory note 33/3/1 of RSC

41
8 SECURITY FOR COSTS
Simeza Sangwa SC, Stephen Colbran, Cameron Ford

The Court or a Judge may, on the application of any defendant, if it or he sees fit, require any plaintiff in
any suit, either at the commencement or at any time during the progress thereof, to give security for costs
to the satisfaction of the Court or a Judge, by deposit or otherwise, or to give further or better security, and
may require any defendant to give security, or further or better security, for the costs of any particular
proceeding undertaken in his interest.21

8.1 ORDER XL OF HIGH COURT RULES

8.1.1 Form of application

Application for security for costs is made by summons in Chambers…Where time permits, a written
demand for security should be made to the plaintiff’s solicitor…An affidavit in support is generally
necessary.22
Before an application is made to the court a written request should be sent to the plaintiff asking him to
give security in a reasonable sum. If the request is not complied with, the application may be made by
summons in chambers before directions are ordered, or on the hearing of the summons for directions, or
if an order for directions has already been made, by two clear days’ notice under the summons for
directions.23
In the case of Borniface K. Mwale v Zambia Airways Corporation Ltd (In Liquidation) costs were defined as follows
“According to Rule 1 of Order 40 of the High Court Rules, costs are monies incurred in defending oneself or in
proving one's case. Therefore, costs do not include the actual amount claimed. Security for costs is generally
provided by the plaintiff. However, the proceedings in which the defendant can be ordered to provide
security for costs are only those proceedings taken in his own interest”.
This is where a party demands money as security for costs. This is made in the court of law if the other
party is frivolous and is risk that they may abandon that application. It was in the case of Isaac Lungu Appellant
v Mbewe Kalikeka Appeal No. 114/2013 where the court stated that one may request for security costs if
a. that the plaintiff is ordinarily resident out of the jurisdiction, or
b. that the plaintiff (not being plaintiff who is suing in representative capacity) is nominal plaintiff
who is suing for the benefit of some other person and that there is reason to believe that he will
be unable to pay the costs of the defendant if ordered to do so, or
c. that the plaintiff's address is not stated in the writ or other originating process or is incorrectly
stated therein, or
d. that the plaintiff has changed his address during the course of the proceedings with view to evading
the consequences of the litigation, then if, having regard to all the circumstances of the case, the
Court thinks it just to do so, it may order the plaintiff to give such security for the defendant’s
costs of the action or other proceeding as it thinks just.
Order 40, Rule 7 of High Court Act governs the security for costs. The Court or a Judge may, on the application
of any defendant, if it or he sees fit, require any plaintiff in any suit, either at the commencement or at any
time during the progress thereof, to give security for costs to the satisfaction of the Court or a Judge, by

21
Order 40 rule 7 of the HCR
22
Explanatory note 23/3/26 of the RSC
23
Atkin’s Encyclopedia of Court Forms. (1991 Issue). Vol, 14: para 3 p. 95

42
deposit or otherwise, or to give further or better security, and may require any defendant to give security,
or further or better security, for the costs of any particular proceeding undertaken in his interest.
The cost of every suit or matter and of each particular proceeding therein shall be in the discretion of the
Court or a Judge; and the Court or a Judge shall have full power to award and apportion costs, in any
manner it or he may deem just. Clearly Order 40 rule 7 places discretion on the Court or the Judge in
deciding whether or not to grant security for costs. It is also clear from the foregoing rule and authority
that security for costs can be ordered against a plaintiff or a defendant in a matter.
A plaintiff who is ordinarily resident abroad may be ordered to give security for costs. The onus is on the
defendant to prove that the plaintiff is “ordinarily resident” out of the jurisdiction. The question is one of
fact and of degree; it does not depend upon the duration of the residence, but upon the way in which a
man’s life is usually ordered, and it contrasts with occasional or temporary residence.
Where the sole plaintiff or all the plaintiffs are resident abroad security may be ordered and there is no rule
that the Court will not grant more than two applications for security.24
It is important to note that the Court shall not require a plaintiff to give security by reason only of the
plaintiff’s address not being stated in the writ or other originating process or is incorrectly stated therein if
he satisfies the Court that the failure to state his address or the mis-statement thereof was made innocently
and without intention to deceive.25

8.1.2 Manner of giving security

1. Where an order is made requiring any party to give security for costs, the security shall be given in
such manner, at such time, an on such terms (if any) as the Court may direct.26
2. Where the Master orders security for costs to be given, he will fix the amount and direct the mode
in which and the time within which such security should be given, and the order will usually provide
that proceedings shall be stayed until such security is given.27
In Rosemol General Suppliers Ltd & Rosemary Bwalya v West Star Properties Limited, Lamasat International Ltd &
Kobil Zambia Limited; This was an application made on behalf of the Second and Third Respondents for an
order that the appellants be made to pay security for costs before any further steps can be taken to prosecute
their appeal. Justice Mumba Malila SC, stated:
“In addition to the ground laid in Order 23(1), the court may, having regard to all the circumstances of the case, consider
other instances where an order for security for costs is appropriate to make. At paragraph 304 of Halsbury’s Laws of
England, the following guidelines are laid down for a court to consider in either granting or refusing to grant an order for
security for costs:
(a) Whether the plaintiff’s claim is made in bad faith and is not in sham;
(b) Whether the plaintiff has a reasonably good prospect of success;
(c) Whether there is an admission by the defendant on the pleading;
(d) Whether there is a substantial payment into court;
(e) Whether the application for security was being used oppressively so as to stifle a genuine claim;
(f) Whether the plaintiff’s want of means has been brought about by conduct of the defendant;
(g) Whether the application for security is made at a late stage of the proceedings
In deciding whether or not to exercise my discretion to grant an order for security for costs, I have taken the foregoing
guidance into account.”

24
Explanatory note 23/3/4 of the RSC
25
Order 23 rule 1 sub-rule 3 of the RSC
26
Order 23 rule 3 of the RSC
27
Explanatory note 23/3/27 of the RSC

43
In Knight v Ponsonby [1925] 1 K.B. 545 The Court held:
There is no general rule of practice that security for costs will be required from a plaintiff who appears to have no
permanent residence. If the address indorsed on the writ is not of a permanent character it may well afford grounds
for ordering security, even in the absence of any suggestion that the address is an illusory or misleading one; but
security cannot be required from a plaintiff who has indorsed a sufficient address on his writ and afterwards has
been compelled to remove from that address and is prevented by poverty and adversity from acquiring a fresh
permanent one.
Lord Scrutton L.J. further stated therein:
A person, such as the master manner in Chellew v Brown [1923] 2 K.B 844, may not have a permanent address,
and in that case, it was held that though the address of the plaintiff given on the writ was wrongly stated, though
innocently, it was not sufficient ground for making an order on him to give security for costs. It is true it is not
known where he will be, but that is due to the nature of his occupation.

44
9 COMMENCEMENT IN THE HIGH COURT
Simeza Sangwa SC, Patrick Matibini

9.1 WRITS OF SUMMONS

A writ is a formal prescribed document by which an action is commenced by a Plaintiff in the High court.
Order 6 Rule 1 of the High Court Rules (“HCR”) provides that every action in the High court shall be
commenced by writ of summons endorsed and accompanied by a statement of claim.
Subject to statutory provision or to these rules (RSC) proceedings which must be commenced by a writ of
summons are;
a. Claim for a relief in tort other than trespass to land
b. Claims for debt
c. Plaintiff’s claim based on an allegation of fraud
d. Claim by the plaintiff for breach of duty
e. Claim by the plaintiff is for breach of promise to marry
f. Claim by the plaintiff for infringement of patent.
The writ of summons must have the following information
i. Case number
ii. The names of the parties to the suit and their description i.e. (firm, male)
iii. Full names of the plaintiff and his address
iv. Full name of the defendant and his last known address
v. The signature of the registrar.
vi. The name of the Chief Justice
vii. The seal of the High Court
In Zambian jurisdiction, there is no choice in the High Court as every action is mandatory to commence
with a writ of summon. This rule has the same effect as Order 6, Rule 7 of the Supreme Court Rules of
England, the relevant part of which reads as follows: No writ which, or notice of which, is to be served out
of the jurisdiction shall be issued without the leave of the Court as it was stated in the case of Leopold Walford
(Z) Limited v Unifreight (1985) Z.R. 203 (S.C.)
In Chikuta v Chipata Rural Council (1974) ZR 241 (SC) it was held “there is no case in the High Court where
there is a choice between commencing an action by a writ of summons or by an originating summons. The
procedure by way of an originating summons only applies to those matters referred to in Order VI, rule 2, of
the High Court Rules and to those matters which may be disposed of in chambers. Where any matter is
brought to the High Court by means of an originating summons when it should have been commenced by
writ, the court has no jurisdiction to make any declarations”.

9.1.1 Indorsement of claim

Before writ is issued it must be indorsed
a. with statement of claim
b. a demand letter with concise statement of the nature of the claim made or the relief or remedy
required in the action
If the endorsement in the concise statement lacks sufficient particularity, the writ is not rendered a nullity
but the defect may be cured by an amendment or by the service of a full statement of claim.

45
9.1.2 Indorsement as to solicitor and address
It is necessary for the plaintiff's address, as well as that of his advocate, to be endorsed on the writ. Where
the plaintiff sues by solicitor, with the plaintiff's address and the solicitor’s name or firm and business
address of his within jurisdiction and also (if the solicitor is the agent of another) the name or firm and
business address of his principal. This was also articulated in the case of Leopold Walford (Z) Limited v
Unifreight (1985) Z.R. 203 (S.C.).
Where he sues by solicitor, the business address of the solicitor indorsed on the writ or, where there are
two such addresses so indorsed, the business address of the solicitor who is acting as agent for the other.
As Order VI, Rule 7 of the Supreme Court Rules of England no writ which, or notice of which, is to be served
out of the jurisdiction shall be issued without the leave of the Court.''
Where solicitor’s name is indorsed on writ, he must, if any defendant who has been served with or who has
entered an appearance to the writ requests him in writing so to do, declare in writing whether the writ was
issued by him or with his authority or privity. If solicitor whose name is indorsed on writ declares in writing
that the writ was not issued by him or with his authority or privity, the Court may on the application of any
defendant who has been served with or who has entered an appearance to the writ, stay all proceedings in
the action begun by the writ.
Every writ of summons shall be sealed by the proper officer and shall thereupon be deemed to be issued.
Every writ of summons shall bear the date on the day on which it shall be issued, and shall be tested in the
name of the Chief Justice or, if the office of the Chief Justice be vacant, in the name of the Judge or other
person appointed to perform the functions of the Chief Justice under Order VI, Rule 3 of the High Court Rules.

9.1.3 CONCURRENT WRIT

Under Order VIII one or more concurrent writs may, at the request of the plaintiff, be issued at the time
within 12 months when the original writ is issued or at any time thereafter before the original writ ceases
to be valid.

9.1.4 DURATION OF A WRIT AND RENEWAL

Under Order IX for the purpose of service, writ (other than concurrent writ) is valid in the first instance for
12 months beginning with the date of its issue and concurrent writ is valid in the first instance for the period
of validity of the original writ which is unexpired at the date of issue of the concurrent writ.
Where writ has not been served on defendant, the Court may by order extend the validity of the writ from
time to time for such period, not exceeding 12 months at any one time, beginning with the day next
following that on which it would otherwise expire, as may be specified in the order, if an application for
extension is made to the Court before that day or such later day (if any) as the Court may allow.
Every writ of summons shall be endorsed with a statement of the nature of the claim made, or of the relief
or remedy required and shall, subject to the other provisions of these Rules, state a time (to be fixed by the
Registrar) within which appearance must be entered by the party sued or to be served as it was stated in the
case of Inyati Construction Ltd. v Powell Construction Ltd and Another (2013).

9.2 ORIGINATING SUMMONS

Order 6 rule (2) of the High court rules provides that “Any matter which under any written Law or these rules
may be disposed of in chambers shall be commenced by an Originating Summons.” Generally, an
Originating Summons is appropriate where there is unlikely to be any substantial dispute of fact or where
the sole or principal question at issue is or is likely to be one of the constructions of an Act or of any
instrument made under any Act or of any deed or will or contract or other document or some other question
of law. In Chikuta V Chipata Rural Council (1974) ZR 241 the Supreme court held that “the procedure by
way of originating summons only applies to those matters referred to in Order 6 Rule 2 and those matters
which can be disposed of in chambers In Amber Louise Guest and Another V Bearice Mulako Mukinga &
Attorney General, the court after addressing its mind to order 6 rule 2 of the High court rules as amended as

46
well as Order 30 of the High court rules took the view that the matter qualified to be disposed of in chambers
and was properly commenced by way of originating summons.

9.2.1 Contents of the Originating summons

Summon Every originating summons must include:
a. A statement of the questions which the plaintiff seeks the court to determine e.g. questions of
construction of an Act of Parliament
b. A concise statement of the relief or remedy claimed in the proceedings,
c. if the plaintiff sues in the representative capacity, the summons must be indorsed to that effect.

9.2.2 Form of summons

In Rural Development Corporation Limited V Bank of Credit and Commerce Zambia Limited (1987) ZR P.35 The
Supreme court held that although section 81 of the Lands and Deeds Registry Act provides no procedure
for the removal of a caveat, an originating summons is the proper form for commencing proceedings for
removal of a caveat. Originating summons for possession of land under Order 113 of the RSC are issued
where a person claims possession of land which he alleges is occupied by a person/s not being tenant such
as squatters on the Land. Read Order 30 Rule 12 and Order 30 Rule 14

9.2.3 Originating summons vis-à-vis writ of summons

Failure to enter an appearance
If the defendants fail to enter an appearance or a defence, the plaintiff will not be entitled to a default
judgment as the case may be with proceedings commenced with a writ of summons. But court will proceed
with the hearing ex-parte.
Order 6 Rule 1(2) provides that:
Any other matter which under any written law or these Rules may be disposed of in chambers shall be
commenced by an Originating Summons. Order 30 Rule 11 provides a detailed list of matters that may be
dealt with in chambers. In construing this provision, the Supreme Court in the case of Rural Development
Corporation Limited v Bank of Credit and Commerce (Zambia) Limited (1987) ZR 35 (SC) held that:
In addition, business stipulated under any other rule or by statute or by the law and practice for the time being observed
in England and applicable to Zambia, may also be disposed of in chambers and by implication may be commenced by
originating summons.
The duration of originating summons is 12 months within which it must be served on the defendant. If
not served, the plaintiff must before the expiration of the 12 months apply for leave to review the writ.
A concurrent originating summons may be issued in the same manner mutatis mutandis as a concurrent
writ of summons. Evidence is given by affidavit. The originating summons are heard in chambers on
affidavit evidence.

9.3 ORIGINATING NOTICE OF MOTION

Originating motions frequently arise under the provisions of various statutes. Proceedings may be begun
by originating motion only if by the Rules of court or under any Act the proceedings in question are required
to be so begun. New Plast Industries Limited v Commissioner of Lands & Another (2001) Z.R. 51 Held that the
mode of commencement of an action is determined or provided by the relevant statute. Evidence on
originating motions is normally given by affidavit. The court may on the application of any party order the
attendance of deponents for cross-examination. Matters are listed for hearing in chambers

9.3.1 Which claims can be begun by originating motions?

Subject to the provisions of any Act and these rules, civil proceedings may be begun by originating
motion. Claims

47
 a. loan recovery and
b. judicial review proceedings may be begun by originating motions.
c. In other instances, the Act of Parliament stipulates which action should be commenced with
originating summons
This is normally provided for by relevant statute. The learned Hon. Justice Dr. Matibini opines that:
Any application to be made to the court, in respect of which no special procedure has been provided by any written law
or by the High Court Rules, shall be commenced by an originating notice of motion. Therefore, where a statute provides
that proceedings may be commenced by application, but does not specifically provide the procedure, an originating notice
of motion should be used.

9.3.2 Contents of an originating motion

A notice of the motion must include
a. a concise statement of the nature of the claim and
b. the relief or remedy require.
Particular originating motions
i. Committal for contempt of court – Applications for committal for contempt of court may be
made by originating motion.
ii. Motion for judicial review under order 53 RSC
iii. Regulation 3 of the Landlord and Tenant (Business premises) Cap 193 provides that “An
application made to the court under the Act shall be commenced by an originating notice of
motion. Evidence in support thereof may be on affidavit or where an affidavit is not required
by these rules’ viva voce”
iv. An application to the court by the tenant for a new tenancy under section 4 and for
determination of standard rent
v. Also, regulation 3 of the Rent Rules provides that a complaint or application to the court under
the Act shall be commenced by an Originating Notice of Motion. Evidence is by an affidavit.

9.4 PETITION
A petition is another mode of commencement of actions in the High Court and can only be used in
cases where it is required by written law or rules of the court. It is specifically provided for by the
following statutes:
▪ Matters before the Constitutional Court as per Order 4 (1) (1) of the Constitutional Court Rules.
▪ Election petitions as per Part IX of the Electoral Process Act No.35 of 2016.
▪ Protection of fundamental rights and freedoms under Article 28 (7) of Constitution of Zambia
as per The Protection of Fundamental Rights Rules, Statutory Instrument No. 156 of 1969.
▪ Section 13 of the Referendum Act, Chapter 14 of the Laws of Zambia.
▪ Winding up of companies.
▪ Divorce proceeding: actions for divorce or judicial separation may be commenced by petitions
▪ Other examples are bankruptcy and petitions for admission to the bar.
In petitions matters are decided on affidavit.

9.4.1 Contents of a petition

Every petition must include
a. concise statement of the nature of the claim,
b. the relief or remedy claimed and
c. the name of the person to be served with the petition.
Examples in which the use of a petition is required or authorised by Law are

48
 1. Applications under Articles 28 (I)(a) of the Constitution of Zambia for enforcement of rights under
part 3 of the constitution. The jurisdiction of the court under Article 28(I)(a) is of a very special
nature and is distinct from what obtains in ordinary civil suits. Such proceedings are
appropriately described as proceedings sui generis meaning “of its own kind”.
2. Petitions issued under Article 28 are governed by the Protection of Fundamental Rights Rules
of 1969. Rule 6 of the Protection of Fundamental Rights Rules of 1969 provides for filing of a petition
along with an affidavit verifying the petition as an option.
3. Applications relating to Presidential, Parliamentary and Local Government elections. Article 103
of the constitution provides that a person may within 7 days of the declaration of a President-elect,
petition the constitutional court to nullify the election of the president-elect. Order 4 rule 3 of the
constitutional court Rules, 2016 provides for the filing of a petition accompanied by an affidavit
verifying facts.
4. Section 100 of the Electoral Process Act, No. 35 of 2016 provides for election petitions to be presented
to the High court in case of an election of a candidate as a Member of Parliament and in the
case of councillor to the appropriate Tribunal. The Election Petition Rules provide for filing of
Petition but do not provide for the filing of an affidavit verifying petition as is the case with
Presidential petitions.
5. Section 8 of the Matrimonial causes Act No. 20 of 2007 provides for the filing of a petition to the
High court by a party to a marriage on the grounds that a marriage has broken down
irretrievably. No affidavit is however required.
6. The companies (winding up) Rules 2004 in Rule 3 (I) provides for the filing of a petition accompanied
by an affidavit verifying facts whenever a party wishes to move the High court to wind up a
company under Section 271 and 272 of the companies Act.

9.5 APPEAL
This is another mode of commencement as opposed to appeals as generally understood, that is, when
is dissatisfied with the decision of a lower court or tribunal. This is different as it is a mode of
commencement usually provided for by statute. Section 87 of the Lands and Deeds Registry Act, Chapter 185
of the Laws of Zambia is an example of how this mode is used.
An appeal against a judgment in the subordinate court lies with the High Court as provided under the
High Court Rules. An appeal to the High Court is done by way of a Notice of Appeal filed in the
subordinate court. The clerk of court must sign the Notice and so must the appellant or his advocate.
In the Notice, the appellant indicates the grounds upon which he is appealing against the judgment.
Such appeal does not operate as a stay of execution of the judgment.
If the appeal is against a final judgment, the Notice of Appeal is to be filed within 30 days of the date
of the judgment. If the appeal is against a ruling made in chambers or on any interlocutory application
before the conclusion of the matter, any party aggrieved by such a ruling is supposed to file a Notice of
Appeal within 14 days of the date of the ruling. If the 30 or 14 days (whichever is appropriate) has
expired or is about to, counsel can apply for an extension of time within which to file the Notice of
Appeal. This is done by way of a summons and supporting affidavit under Order 2 Rule 2 (enlargement
or abridgement of time).

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10 SERVICE OF ORIGINATING PROCESSES/ORDERS
Micheal Legg, Alison Hammond, Simeza Sangwa SC

10.1 ORDER X OF HIGH COURT RULES

Once an action has been commenced, the next step is to serve the originating process. Rules of High Court
Order X governs service of originating process. All Court documents may be served by an officer of the
court, or a legal practitioner or by an employee of such legal practitioner or an authorised agent of the legal
practitioner, duly authorised in writing.

10.1.1 Personal Service (Order X, Rule 6)

a writ must be served on each of the defendants personally by the plaintiff or his agent. Under personal
service of a document is deemed effected by leaving a copy of the document with the person to be served.
In Pegion v Bruce the person serving the originating process returned with the copy of the writ after the
defendant had refused to accept service. The court held that the service had not been affected.
At the time of serving the originating process the plaintiff usually has two copies; original and duplicate the
triplicate is left in the court file for the mean time. The process of personal service requires that the
defendant must make an endorsement on the original copy of the summons. Then the plaintiff must take
the original copy back to the court file where the triplicate is retrieved. As court files are prone to being
misplaced, it is prudent for the plaintiff to keep a copy of the original served copy.
If the defendant is not personally found at the address, the process server must pin the summons on the
door of the defendant’s place. If for one reason or the other the defendant has refused to accept service
then the process server must throw the summons at the defendant’s feet and briefly explain to him of the
consequences thereof.
If the defendant has accepted service of the summons, well and fine, but where the defendant has refused
to accept service, or that the summons has just been pinned on the defendant’s door then he who processed
the service must swear an affidavit of service indicating the circumstances that led to the failure of the
defendant’s endorsement. If the person who did the endorsement is not the intended defendant, he who
processed the service must also swear an affidavit of service. In the affidavit, the process server must swear
his belief that the process gotten the attention of the defendant.

10.1.2 Service by post (Order X)

It is plain that a writ of summons must be served personally on each defendant or his agent. Nevertheless,
and as an alternative to personal service, where the defendant is within the jurisdiction service of a writ of
summons can be affected by sending a copy of the writ to his usual or last known address. Where this mode
of service is adopted, the date of service shall, unless the contrary is shown, be the seventh day after the
date on which a copy was sent to the defendant.
If service has been affected by post the plaintiff must swear an affidavit indicating that service was by post,
that the address was correct, that the envelope was sealed, that the process server is of the believe that the
summons gotten the attention of the defendant within seven days from the date of service, that you have
not received a return of the letter to show that the defendant is unknown to the address.

10.1.3 Service on partnerships (Order X, Rule 11)

Where the defendant is a partnership, service may be affected
a. on any one or more of the partners or
b. at the principal place of business of the partnership within the jurisdiction, on any person having
at the time-of-service control or management of the partnership business there.

50
This must not be understood to mean that service can be affected on the firm’s employee who happens to
be at the time of service, on the premises unless if the person is for the time being the in-charge of the
business affairs. In Howard Baker & Co v Bradley 1917 (Unreported) service effected on the female employee
who had no control of the affairs of the business at the time of service was deemed not to have been
affected on the defendants as the female employee did not have any control over the affairs of the firm.
Service on partnerships may also be affected by posting the process to the principal place of the business
of the partnership.

10.1.4 Service on legal practitioners on behalf of their clients

Service can only be affected on the legal practitioners on behalf of their clients only if the legal practitioners
have so expressed that the service has to be affected on them. When such service is accepted by the legal
practitioner the writ is deemed duly served.

10.1.5 Substituted Service (Order X Rule 3)

Substituted service on the other hand is resorted to when personal service of an originating process on a
defendant within jurisdiction is not possible due to reasons such as evasion of service by the defendant or
the inability to locate the defendant. A claimant seeking to serve a defendant within jurisdiction by
substituted means must seek and obtain an order of court to serve the defendant by a specific means as
stated in the relevant court rules.

10.1.6 Service on foreign person in foreign country (Order X, Rule 18)

Where a writ of summons, originating summons or originating notice of motion is issued for service out
of the jurisdiction upon a person not being a citizen of Zambia, notice thereof and not the originating
process itself shall be served upon such person. For one to effect service out of jurisdiction, he must seek
leave to issue the writ itself and seek leave for service of the writ out of the jurisdiction prescribes
circumstances under which the court may permit service out of the jurisdiction.

10.1.7 When service out of the jurisdiction allowed (Order X, Rule 15)
Service out of the jurisdiction of a writ of summons, originating summons or originating notice of motion,
or of a notice of such writ of summons, originating summons or notice of motion may be allowed by the
Court or a Judge whenever
1. If the land for which the writ is the subject is situate in the jurisdiction.
2. If an act, deed, will, contract, etc affecting land situate within the jurisdiction is sought to be
construed, rectified set aside or enforced.
3. If relief being sought is against a person domiciled or ordinarily resident within the jurisdiction
4. If the action begun by writ is for the execution of as to property situate within the jurisdiction
5. The action is for the administration of the personal estate of any deceased person, who at the time
of his death was domiciled within the jurisdiction, or for the execution (as to property situate within
the jurisdiction) of the trusts of any written instrument, of which the person to be served is a
trustee, which ought to be executed according to the law of Zambia.
It is important to note that the court has the discretion to grant leave for service out of jurisdiction. Leave
will only be given if prima facie or a good arguable case is made out on the facts of the law. If it is plain on
the law that the plaintiff’s claim will fail leave may not be granted.

10.2 TIME FOR EFFECTING SERVICE

Under Order X, Rule 6, for an originating process, if you are able to trace the defendant, service can be
affected at any time of the day or night except on Sunday. However, in cases of urgency and with the leave
of the court service of originating processes can be affected on Sundays. For all other documents, service
must be affected before 16:00 hours after that time a document will be deemed to have been served at the
start of business of the following day. Service in a civil cause shall not be made on Sunday, Good Friday or
Christmas Day. All writs, notices, pleadings and any other documents shall be sufficiently served if left at
the address for service at the place.

51
10.3 ENTRY OF APPEARANCE
Order XI, Rule 15 of the High Court Rules defendant may appear at any time before judgment. Appearance
may be in personal or through legal representation. Corporate persons may only appear before a court
through legal representation. People of unsound mind and minors must appear through legal representative.
Court may permit party to appear by proxy. The process for entry of appearance; is such that:
a. the defendant shows his intention to defend the case and
b. the defendant submits himself to the jurisdiction of the court.
The appearance is acceptance that the summoning court has jurisdiction over the case. Under the law
disabled persons such as in minors and mentally challenged persons, must enter appearance through a
guardian, beyond that they must enter appearance through a lawyer. A corporate can only enter a memo of
appearance, beyond that they must be represented by a lawyer. Although the court has come into the
practice of accepting the memo of appearance when sent by the post, the process of posting is risky as the
mail may be lost, damaged, or it may not be attended to by the persons responsible.

10.3.1 Conditional appearance

The defendant may enter a conditional appearance with the leave of the court. The effect of the conditional
appearance is to prevent a judgement in default of appearance being entered against a defendant whilst at
the same time allowing him to object to any irregularities in the issue or service of the writ or to the
jurisdiction of the court. The leave to conditional appearance is applied ex-parte. After the court has granted
leave for conditional appearance, the defendant may then proceed to take inter-parte summons to set the
writ aside.
In Sheldon v Brown Bayley’s Steel Works Limited& Another [1953] 2 All ER 382 husband to the plaintiff had
been killed in an accident caused by the defendants. Having issued the writ twelve months elapsed before
the same was served on the defendants. Then she served the writ outside the twelve months period. The
first defendants made an outright conditional appearance and the plaintiff’s claim was set aside on the basis
that serving a writ which has outlived its life span of 12 calendar months is a nullity not an irregularity.
Having entered the conditional appearance, failure to apply to set aside the writ will render the appearance
unconditional. Order 11/1 (4) of The High Court Rules (HCR) which provides as follows
“Any person served with a writ under Order 6 of these rules may enter conditional appearance and apply by summons
to the court to set aside the writ on ground that the writ is irregular or that the court has no jurisdiction.”

10.3.2 Time of appearance

“A defendant may appear at any time before judgment.”
Practice Direction No. 4 of 1977 provides for time within which appearance must be entered on Court Writs.
It provides: “it is hereby notified for the information and guidance of practitioners, the Registrar, District
Registrars and Assistant Registrars, that the time within which appearance must be entered on Court Writs
shall be:
1. Where a Writ is to be served at a place less than 100 kilometers from the issuing Registry, the time
within which an appearance must be entered shall be 14 days.
2. Where a Writ is to be served at a place which is 100 kilometers or more from the issuing Registry,
but less than 500 kilometers, the time within which an appearance must be entered shall be 21 days.
3. Where a Writ is to be served at a place, which is more than 500 kilometers from the issuing Registry,
the time within which an appearance must be entered shall be 30 days.
4. Where a Writ or notice or such writ is to be served out of the jurisdiction pursuant to Order 10,
rule 15, of the High Court Rules, Cap 27, the time within which an appearance must be entered
shall be 42 days.
5. The Registrar, or District Registrar may, for good cause shown, extend any of the above periods
in cases where particular hardship is likely to be caused to a defendant by strict adherence to the
period.

52
 6. The foregoing provisions shall not affect the rights of the State under section 22 of the State
Proceedings Act, Cap 71.”
The defendant may therefore at any time before judgment enter appearance in such times as prescribed
by the above Practice Direction.

10.3.3 Appearance to originating summons

Order 10 rule 22 of the High Court Rules provides:
“The parties served with an originating summons shall, before they are heard, enter appearances, and give notice
thereof. A party so served may appear at any time before the hearing of the summons. If he appears at any time
after the time limited by the summons for appearance he shall not, unless the Court or a Judge shall otherwise order,
be entitled to any further time for any purpose, than if he had appeared according to the summons.”

53
11 JUDGMENT
Thomas Giddens, Lucy Williams

11.1 ORDER XXXVI OF THE HIGH COURT RULES

Under Order XXXVI, Rule 1 of the High Court Rules, the decision or judgment in any suit shall be delivered
in open court, unless the Court otherwise directs. This is in conformity with Order III Rule 1 of the High Court
Rules where it states that the sittings of the Court for the hearing of causes and matters shall ordinarily be
public; but the Court may, for a reason to be specified by it on the minutes, hear any particular cause or
matter in the presence only of the parties, with their legal advisers, if any, and the officers of the Court.

11.2 DEFAULT JUDGMENT

Entering a Default Judgement
Judgment may be entered in default if the defendant fails to enter an appearance within the time limited to
appearing. The judgement so entered may be final or interlocutory depending on the nature of the claim.
Under Order XX, Rule 3 of the High Court Rules any judgment by default, whether under this Order of under
any of these Rules, may be set aside by the Court or a Judge, upon such terms as to costs or otherwise as
the Court or Judge may think fit.
1. Claims for liquidated damages/final judgement
Where the writ is endorsed with a claim for liquidated demand, if the defendant fails to enter an appearance,
after the time limited for entering an appearance has expired, the plaintiff may enter a final judgement
against the defendant with costs.
The plaintiff cannot sign judgment for more than the amount claimed in the endorsement on the writ. In
Gee v Bell (1887) The amount for which judgment is entered should be carefully limited to the amount
actually due at that time, and credit should be given for payments made after action was brought. A
judgment entered for more than what is due is irregular and ought to be set aside ex-debito justitice.
2. Claims for possession of land/final judgement
Where a writ is endorsed for possession of land only the defendant fails to enter an appearance, the plaintiff
may enter final judgement for the possession of the land with costs. For the default judgement to be entered,
he must however produce a certificate stating that he is not claiming any relief in the action of the nature
specified, failure to produce such certificate will render the default judgement not being signed.
3. Claims for unliquidated damages/interlocutory judgement
The case being that the writ was indorsed with a claim for un-liquidated damages only, on the defendant’s
failure to enter appearance, the defendant may, after the time for entering appearance has expired enter
interlocutory judgement against the defendant for damages to be assessed and costs. The interlocutory
judgment not being final judgement, the court must proceed to assessing the damages. The plaintiff must
take a notice for assessment of damages. Final default judgment is only entered where the plaintiff had
pleaded for a liquidated sum.
Requirements before entering a judgement
Regardless of whether the defendant received, the Writ or not, he is deemed to have received the same 14
days after the date on which the Writ was posted or sent to him. On the expiration of the 14 days, it is a
requirement under the RSC that the defendant should give a notice of intention to defend the action or
acknowledge the service and file his defense. on failure to give notice of intention to defend, a default
judgment would be entered as long as it is shown that the Writ was duly served, time for acknowledging

54
must have expired or the defendant must have shown he does not intend to defend action. There must be
proof of service of the writ, either by affidavit of service or an endorsement of acceptance of service. If
these have not been complied with then the judgment is irregular. At the same time is also important that
a default judgment should be entered for the amount actually due at that time. If entered for more, it is
irregular.
A default judgment may be entered on a failure to serve a defense, after expiration of the period fixed for
service of defense. In this regard, the default judgment is entered in three situations. The first instance is
where writ is endorsed with statement of claim and notice of intention to defend has been given and 14
days have elapsed after giving notice of intention to defend. The second instance is where the plaintiff has
leave to defend given 14 days from date leave is given. Finally, judgment can be entered, where statement
of claim is served after notice of intention to defend, 14 days from service of statement of claim. It is worth
noting that if judgment is entered earlier, it is irregular.

11.2.1 Setting Aside Judgment

In terms of Order 12 (2) of the HC Rules, where a judgment has been entered, it shall be lawful for the court
to set is aside or to vary such judgment upon such terms as the court may determine. For judgment in
default of defence or pleadings under Order 20(4) which provides that any judgment by default whether
under this order or any pf rules may be set aside by the court upon such terms as to costs as the court may
think fit. Case law has gone a step further to determine in what circumstances a court may set aside a
judgment in default of appearance or in default of pleading: landmark decision in Walter Wells Ltd v Wilson
Samuel Jackson 1984 ZLR 98 – although it is usual on an application to set aside a default judgment, not only
to show a defence on the merit, but also to give an explanation of that default, it is the defence on the merit
which is more NB point to consider.

11.3 REGULAR JUDGMENT

Simply defined, a regular judgment is one for which judgment is entered for the amount actually due. It
should be also worth noting that a regular judgment is one which is obtained after there has been due
service of the later has failed to acknowledge or file a notice to defend. It should also state that a judgment
entered on the merits after a full trial is a regular one and that a regular default judgment can only be set
aside by the defendant if he has a defense on the merits.
A judgment becomes irregular if among other things it is entered for an amount higher than the amount
actually due and the same is not corrected. A judgment also becomes irregular if it was obtained without
there being due service on the defendant, that is, where there was no personal service on the defendant or
where the Writ was posted to the wrong address. In this regard it is a requirement that there must be proof
of service of the Writ, which is either done by affidavit or by showing to the court an endorsement of
acceptance of service. A judgment will also be irregular if it is entered before the expiry of the time set for
acknowledging service.
A default judgment can be set aside for any of the above irregularities or if the defendant shows that he has
a defense on the merits, like where he shows the court a receipt indicating that he paid the amount that the
plaintiff is claiming.

11.4 SUMMARY JUDGMENT

Order 13(1) of the HC Rules read in conjunction with order 14 of the Rules of the Supreme Court of England
of 1965.
Where a statement of claim has been duly served on the defendant and the defendant has given his notice
of intention to defend the action, the plaintiff may, on the ground that the defendant has no defense to the
claim in the Writ or any part of the claim, apply to the court, for judgment to be entered against the
defendant. This process is known as a summary judgment and this is due to the fact that judgment is

55
obtained by the plaintiff without a full trial. Summary Judgment can also be obtained on a point of law or
construction of any document arising in an action.
This judgment can be obtained where it appears to the court that the question on a point of law or
construction of a document can be determined without a full trial and that such a determination will finally
determine the entire cause or matter or claim. Order LII, Rule 5 no application against the State shall be
made for summary judgment either under Order XIII, rule 1, or otherwise
Under the Judgments Act Cap 81 states that that every judgment, order, or decree of the High Court whereby
any sum of money, or any costs, charges or expenses, is or are to be payable to any person shall carry
interest at the rate of six per centum per annum from the time of entering up such judgment, order, or
decree until the same shall be satisfied, and such interest may be levied under a writ of execution on such
judgment, order, or decree.
The Law Reform (Miscellaneous Provisions) Act under section 4, clearly states that the Power of courts of record
to award interest on debt and damages. Order LII Rule 5 No application against the State shall be made for
summary judgment either under Order XIII, Rule 1, or otherwise.
Application for summary judgment
Mode of application
Order 86, rule 2 RSC 1999 states that an application for summary judgment shall be made by summons
supported by an affidavit
a. verifying the facts on which the cause of action is based and
b. stating that in the deponent’s belief there is no defence to the action.

11.5 REVIEW OF JUDGMENT

In the case of John Mumba and Ors v Zambia Red Cross Society (SCZ 31 of 2006), a court may review its decision
or order on sufficient grounds. One of
such grounds is that some evidence, that existed at the time of the hearing,
was not made available to court on the ground that even after a diligent
search it could not be found. Further this power is discretionary. It was re-affirmed in the case of Lisulo vs.
Lisulo where it was stated that the power to review under Order 39 Rule 1 of the High Court Rules, Cap.27 is
discretionary for the judge and there must be sufficient grounds to exercise that discretion.
The judge has the power to review its decision where a party has found new evidence which would have
been material instrument on the judgment of the court. In Zambia Telecommunications Company Limited v
Mulwanda and Ngandwe (Appeal 63 of 2009) [2012] it was held that the Respondents should have applied for
special leave to review, pursuant to Order 39, Rules 1 and 2 of the High Court Rules. That under these Rules,
the High Court has jurisdiction to rehear the case wholly or in part and to take fresh evidence, and to
reverse, vary or confirm its previous judgment or decision.
Mayo Transport v United Dominions Corporation Limited, which followed Thynne v Thynne, was a High Court
decision. However, it was approved by the High Court in Lewanika & Others v Chiluba and Walusiku Lisulo
v Patricia Lisulo. In those two cases, the High Court gave guidance when a trial Court can review its judgment
or decision. Then there is also Jamas Milling Company Limited v Amex International PTY Limited, on the issue.
In that case we said:
"For review under Order 39, Rule 2 of the High Court Rules to be available, the party seeking it must show that he
has discovered fresh material evidence, which would have material effect upon the decision of the Court and has been
discovered since the decision but could not, with reasonable diligence, have been discovered before."
Application within 14 days

56
As per Order XXXIX Rule 2 of the High Court Act, any application for review of any judgment or decision
must be made not later than fourteen days after such judgment or decision. After the expiration of fourteen
days, an application for review shall not be admitted, except by special leave of the Judge on such terms as
seem just.
Grounds upon a Decision May Be Reviewed
The party seeking review must demonstrate that he has discovered fresh evidence which has material effect
upon the decision of the court and has been discovered since the decision but could not with reasonable
diligence be discovered before. This was the court’s decision in ZAMTEL v Aaron Mweene Mulwanda Paul
Ng’andwe Selected Judgement No. 7 of 2012.
John Mumba, Danny Museteka, Dr W. Amisi, Denis S. Simuyuni v Zambia Red Cross Society (2006) ZR page 157 the
Supreme Court held that: “a court may review its decision or order on sufficient grounds. One such ground is that some
evidence that existed at the time of hearing was not made available to the court on the ground that even after a diligent search
it could not be found.

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12 COSTS

Simeza Sangwa SC, Katherine F. Murray

Costs are the expenses of litigation or prosecution allowed in favour of one party against the other
by the court.28 Costs include legal fees, charges, and disbursements and are awarded to compensate
the successful party for the expenses to which he has been put and he cannot therefore recover a
sum in excess of his liability to his own advocates. The costs must be costs of the proceedings in
which the parties are involved.29
The Supreme Court in the case of Kuta Chambers (Sued as a firm) v Concillia Sibulo (Suing as Administratrix
of the estate of the late Francis Sibulo) Selected Judgment No. 36 of 2015 held as follows:
“A legal practitioner engaged by a party to represent that party is entitled to charge for services provided and
for expenses that he incurs for such representation. The charges for legal services are called legal fees while the
case costs, that is to say the expenses that the legal practitioner incurs on behalf of the instructing party (which
include court filing fees, witnesses' travel expenses, photocopy charges, courier payments etc.) are called
disbursements. The legal fees and disbursements together are what we understand as costs. Costs therefore are
not confined to legal fees alone. This is consistent with the definition of the term costs given in section 2 of the
Legal Practitioners, Act Chapter 30 of the Laws of Zambia.”
It therefore follows that costs are comprised of expenses incurred by a party in the prosecution of
his case and where he is represented by advocates. Costs are comprised of legal fees and any costs
of the proceedings incurred by the advocates on his behalf.
The cost of every suit or matter and of each particular proceeding shall be in the discretion of the
Court or a Judge; and the Court or a Judge shall have full power to award and apportion costs, in
any manner it or he may deem just, and, in the absence of any express direction by the Court or a
Judge, costs shall abide the event of the suit or proceeding.30 However, the Court shall not order the
successful party in a suit to pay to the unsuccessful party the costs of the whole suit; although the
Court may order the successful party, notwithstanding his success in the suit, to pay the costs of any
particular proceeding therein.
It is thus now settled that costs for any legal proceedings shall be awarded in the discretion of the
court. This position has been repeatedly asserted by the court in various cases. Among the
considerations to be had in exercising the discretion to award costs is one that was articulated in Y.B.
and F Transport v Supersonic motors Limited (2000) ZR 22 in which the Supreme Court held that:
“The general principle is that costs should follow the event, in other words, a successful party should normally
not be deprived of his costs, unless the successful party did something wrong in the action or in the conduct
of it.” The winner, in other words, is relieved from the burden of incurring expenses and recovers his costs
from the loser.

12.1 TAXATION OF BILL OF COSTS

Where the parties are unable to agree the costs payable, the party who has been ordered to pay costs can
require the party who is claiming the costs to have the bill taxed by the taxing master. In this respect, the
High Court Rules provide: “All questions relating to the amount of costs shall, unless summarily determined
by the court be referred to the Taxing Master and, after notice of taxation, to the parties, be ascertained by

28
Bryan A. Garner, Black’s Law Dictionary, 8th ed. West, a Thomson Business (2004) p. 372
29
Ibid…page 19
30
Order 40 rule 6 of the High Court Rules, Chapter 27 of the Laws of Zambia

58
him.” A party whose costs are to be taxed ought to prepare a bill of costs for taxation. A bill of costs, which
is subject to taxation, is an itemized account reflecting all the charges, including fees and disbursements
made by a legal practitioner. The fees charged in a party-to-party bill of costs, must be drawn in accordance
with the tariff of fees and charges set out in the Legal Practitioners (Costs) Order. Briefly, a bill of costs
should indicate
(a) a date on which the work was done;
(b) the items in respect of which costs are charged, which items should be numbered and must be
listed in a chronological order;
(c) the number of folios or pages involved and the period of time spent in relation to each item;
(d) a precise description of each item; and
(e) the fees charged for each item, charged in accordance with the applicable tariff.

12.2 APPEALS ON TAXATION

A party who is dissatisfied with the decision of the Taxing Master may apply to the court for review. In the
case of the High Court, Court of Appeal, and Constitutional Court, it is provided: “Any party to any taxation
proceedings who is dissatisfied with the allowance or disallowance in whole or in part of an item by a Taxing Officer, or with
the amount allowed by a Taxing officer in respect of any item, may apply to the Taxing Officer to review his decision in respect
of that item.”
It further provides that:31 “Any party who is dissatisfied with the decision of Taxing Master to allow or to
disallow any item in whole or in part on review under the two last foregoing or with the amount allowed in
respect of any item by a Taxing Master on any such review, may apply to a judge for an order to review the
taxation as to the item or part of an item.” Order 40 of the High Court Rules therefore gives a party who is
aggrieved by the decision of the Taxing master two options: either to apply for review before the Taxing
master, 32 or if still dissatisfied with the review by the Taxing master, apply for review to a Judge in
Chambers.
Time within which to file bill of costs before Taxing master – party to party
Where a party is entitled to recover taxed costs or to require any costs to be taxed by a Taxing officer by
virtue of a judgment, direction or order given or made in proceedings in the Court or arbitral tribunal, he
must begin proceedings for the taxation of those costs within three (3) months after the judgment, direction,
order, award or other determination was entered, signed or otherwise. A party who begins proceedings for
taxation must, at the same time, lodge in the appropriate office a bill of costs.33
It therefore follows that the bill of costs must be filed three (3) months after the order granting costs has
been made and at the same time as the taxation proceedings are commenced.

12.3 WHAT TO INCLUDE IN THE BILL OF COSTS

The bill of costs must contain the following:
(i) Professional charges and the disbursement set out in separate columns;
(ii) It must be endorsed with the name, or firm and business address of the solicitor whose bill it is;
and
(iii) It must be signed by that solicitor or, if the costs are due to a firm, by a partner of that firm.

31
High Court Rules Order XL, r 5(1), Court of Appeal Rules Order XII, r 5 and Constitutional Court Rules Order
XIII, r 5.
32
High Court Rules Order XL, r 3(10).
33
Order 62 Rule 29 (1) of the Rules of the Supreme Court of England, 1965

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12.4 SOLICITOR – CLIENT FEES
A practitioner and his client may; either before or after or in the course of the transaction of any non
contentious business by the practitioner, make an agreement as to the remuneration of the Practitioner in
respect thereof. Agreement with respect to remuneration for non contentious business.
The agreement may provide for the remuneration of the practitioner by a gross sum, or by commission or
percentage, or by salary, or otherwise, and it may be made on the terms that the amount of the remuneration
therein stipulated for either shall or shall not include all or any disbursement made by the practitioner in
respect of searches, plans, travelling, stamps, fees or other matters.34
A practitioner may make an agreement in writing with his client as to his remuneration in respect of any
contentious business done or to be done by him, providing that he shall be remunerated either by a gross
sum, or by salary, or otherwise. Power to make agreements as to remuneration for contentious business.35
A Legal practitioner is obliged by the Legal Practitioners’ Act, to charge in accordance with the scale of fees
set out in the Legal Practitioners’ (Conveyancing and Non-Contention Matters) (Costs) Order 2001
(Statutory instrument No 8 of 2001), in the case of non-contentious matters, and the Legal Practitioners’
(Costs) Order (Statutory Instrument No. 9 of 2001), in the case of all other matters. Both Statutory
Instruments expressly oblige a legal practitioner to agree with the client on the scale to be applied.
A Legal Practitioner, therefore, has a duty on taking instructions to inform his/her client of his charges or
fees and agree on the basis of such charges. This requirement is echoed in Rule 17(1) of the Legal Practitioners’
Practice Rules (Statutory Instrument No. 15 of 2002. In terms of Rule 41 of those Rules, non compliance, failure,
evasion or disregard of the Rules without reasonable cause, constitutes professional misconduct, or conduct
unbefitting a practitioner in terms of section 53(ii) of the Legal Practitioners’ Act, Chapter 30 of the Laws of
Zambia.

12.4.1 Dispute with respect to fees charged by a practitioner to his own client
No practitioner shall commence any suit for the recovery of any fees (charges and disbursements) for any
business done by him until the expiration of one month after he shall have delivered to the party to be
charged therewith or sent by registered letter to or left for him at his office, place of business, dwelling
house or last known place of abode a bill of such fees, such bill either being signed by such practitioner (or,
in the case of a partnership, by any of the partners, either in his own name or in the name of the partnership)
or being enclosed in or accompanied by a letter signed in like manner referring to such bill.36
Upon the party to be charged applying to the Court or a Judge within such month, it shall be lawful for the
Court or a Judge to refer the bill and the demand of the practitioner to be taxed and settled by the Taxing
master of the Court, and the Court or a Judge shall restrain such practitioner from commencing any suit
touching such demand pending such reference.
Upon the completion of the taxation of any bill referred as aforesaid, the taxing master shall submit to the
Court or a Judge the result of his taxation, including costs, and the amount so submitted shall be final and
conclusive as to the amount of the bill and costs provided that the Court or a Judge may, in its or his
discretion, review any such taxation. And it shall be lawful for the Court or a Judge to order that judgment
be entered for the amount submitted, unless the retainer is disputed, or to make such other order therein
as the Court or a Judge may deem proper.37

34
Section 74(2) Legal Practitioners Act Cap 30.
35
Section 76, Legal Practitioners Act Cap 30.
36
Order 50 rule 2 of the High Court Rules, Chapter 27 of the Laws of Zambia
37
Order 50 rule 10 of the High Court Rules, Chapter 27 of the Laws of Zambia

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12.4.2 Advocates’ disputed bill to Taxing officer
Any party to taxation proceedings who is dissatisfied with the allowance or disallowance in whole or in part
of any item by a Taxing officer, or with the amount allowed by a Taxing officer in respect of any item, may
apply to the Taxing officer to review his decision in respect of that item.38
An application under this rule for review of a taxing officer's decision may be made at any time within 14
days after that decision or such shorter period as may be fixed by the Taxing officer provided that no
application under this rule for review of a decision in respect of any item may be made after the signing of
the Taxing officer's certificate dealing finally with that item.
A Taxing master who has reviewed a decision in respect of any item shall issue his certificate accordingly
and, if requested to do so by any party to the proceedings before him, shall state in his certificate or
otherwise in writing by reference to the objections to that decision the reasons for his decision on the
review, and any special facts or circumstances relevant to it.39
Any party who is dissatisfied with the decision of a Taxing master to allow or to disallow any item in whole
or in part on review, or with the amount allowed in respect of any item by a Taxing master on any such
review, may apply to a Judge for an order to review the taxation as to that item or part of an item.40

38
Order 40 rule 3 (1) of the High Court Rules, Chapter 27 of the Laws of Zambia
39
Order 40 rule 3 (4) (3) of the High Court Rules, Chapter 27 of the Laws of Zambia
40
Order 40 rule 5 (1) of the High Court Rules, Chapter 27 of the Laws of Zambia

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13 ENFORCEMENT OF JUDGMENTS AND ORDERS
Patrick Matibini, Stephen Allinson, Dennis S. Ellis and Nicholas J. Begakis

13.1 ORDER XLV OF RSC

13.1.1 General principle

Where judgment for a debt or liquidated demand is entered against the defendant who has acknowledged
service containing a statement that although he does not intend to contest the proceedings, he intends to
apply to stay execution of the judgment , execution of the judgment by such writ shall be stayed for a period
of days from the acknowledgment of service and if within that period the defendant issues and services the
plaintiff a summons for such a stay supported by an affidavit the stay imposed shall continue until the
summons is heard otherwise disposed of.
According to the editorial introduction of Order 45 the series of Orders comprising Orders 45 to 52 inclusive,
under the rubric “Enforcement of Judgment and Orders,” groups together the methods for the
enforcement of the judgments and Orders of the Court. Together they constitute a code of procedure on
the subject R6 of what was called “Execution” in the former rules. They should therefore be read together
as they deal with the various ways in which a successful party can employ the machinery of the Court
towards satisfaction of his judgment.
In Blackman v Fysh [1892] 3 Ch. 209, Justice Kekewich, defined execution as the process of law for the
enforcement of a judgment creditor’s right and in order to give effect to that right. In this regard it is worth
noting that the process of execution is only deemed complete when the plaintiff gets the money that he
was awarded by the court.

13.1.2 Conditions for the stay of execution of default judgment

Where a judgment is given for the payment of money by any person and the court is satisfied on an
application made at the time of judgment or any time thereafter
a. that there are special circumstances which render it impracticable to enforce the judgment or
b. that the applicant is unable to pay the money, court may by order stay the execution of the judgment
either absolutely or for such period as court thinks fit.

13.2 EXECUTION OF JUDGMENT

Once a court reached a finality and judgment fully rendered, what follows therefore is the execution of
judgment. There are various modes in which one can employ in order to obtain or satisfy the money
judgment. A judgment creditor can use two or more.
A writ of execution to enforce judgment or order may not issue without the leave of the Court in the
following cases, that is to say
a. where six years or more have elapsed since the date of the judgment or order.
b. where any change has taken place, whether by death or otherwise, in the parties entitled or liable
to execution under the judgment or order.
c. where any goods sought to be seized under writ of execution are in the hands of receiver appointed
by the Court
d. where under the judgment or order, any person is entitled to relief subject to the fulfilment of any
condition which it is alleged has been fulfilled

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 e. where the judgment or order is against the assets of deceased person coming to the hands of his
executors or administrators after the date of the judgment or order, and it is sought to issue
execution against such asset

13.2.1 Property liable for execution

Order XLII Rule 1 of High Court Rules states that all property whatsoever, real or personal, belonging to a
party against whom execution is to be enforced, and whether held in his own name or by another party in
trust for him or on his behalf (except the wearing apparel and bedding of himself or his family and the tools
and implements of his trade, if any, to the value of five hundred Kwacha or, in the case of a farmer, one
million Kwacha) is liable to attachment and sale in execution of the decree.

13.3 METHODS OF ENFORCING MONEY JUDGMENTS

13.3.1 Writ of Fieri Facias

Fieri facias is a Latin phrase that refers to a writ of execution which directs a state specified officer, usually
a sheriff, to take control of a piece of property and sell it in order to satisfy the owner’s debt or tax
obligations. The person seeking the property to be sold must acquire the writ from a court, and then the
sheriff can begin the process of seizing the property.
In Matibini's Zambia Civil Procedure: Commentary and cases, Vol 2, the learned author states at 1371 that the
amounts endorsed on the Writ of Fieri facias must be both quantified and ordered by the court. Order 46
Rules 1 and 2 of the White Book 1999 Edition. Rule 2 reads as follows: -
"A writ of execution to enforce a judgment or order may not issue without the leave of the Court in the following cases,
that is to say: - (d) where under the judgment or order, any person is entitled to relief subject to the fulfilment of any
condition which it is alleged had been fulfilled."

13.3.2 Walking possession

Order XLII, Rule 8 of the High Court Rules states that when the Sheriff, Under-Sheriff, bailiff or other person
is charged with the levying of an execution, he shall not enter into mere walking possession, nor delay the
execution with a view to taking walking possession only, unless and until the person against whom such
execution has been issued signs a request and authority for walking possession in Form 42 in the First
Schedule.
Walking Possession, refers to the legal practice in Zambia under which a bailiff takes possession of the
goods of a defaulting debtor, but does not remove or damage the goods.

13.3.3 Garnishee proceedings

A ‘Garnishee’ is simply a third-party who holds money or property on behalf of another or is indebted to
the other party, usually the person against whom the court has entered/delivered judgment. According to
the Black’s Law dictionary, the 9th edition, a Garnishee is “A person or institution (such as a bank) that is
indebted to or is bailee for another whose property has been subjected to garnishment”.
The Black’s law dictionary further defines Garnishment as “A judicial proceeding in which a creditor (or
potential creditor) asks the court to order a third party who is indebted to or is bailee for the debtor to turn
over to the creditor any of the debtor’s property (such as wages or bank accounts) held by that third party”.
From the above, it is seen that, the Garnishee is a third-party, who is not actually a party to the case that
was determined by the court. The Garnishee is only brought into the case after the end of the case and at
the time of execution, because the person who was victorious in the suit believes that the Garnishee holds
monies or property that belongs to the party who lost the case. Therefore, a person cannot be made a
Garnishee unless there is a creditor-debtor relationship between the Garnishee and the Judgment Debtor.

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13.3.4 Writ of delivery
In a civil case, the court may order a party to surrender (also known as deliver up) a specific movable
property to another party. The party who needs to surrender the movable property is the judgment debtor,
while the party who should receive the movable property is the judgment creditor.
The court may also order that the judgment debtor has the alternative of paying the assessed value of the
specific movable property.
If the judgment debtor does not comply with the order or judgment, the judgment creditor may file a Writ
of Delivery. A Writ of Delivery directs an enforcement officer of the court (the Sheriff) and officers who
are empowered under the Sheriff's authority (the bailiffs) to seize the specific movable property from the
judgment debtor and deliver it to the judgment creditor.

13.3.5 Writ of possession

The practice stated in Order 45 Rule3(1) is elucidated by J. R. Lewis in his book entitled, Civil and Criminal
Procedure, (London Sweet, and Maxwell 1968) in the following terms at page 98:
“Where the plaintiff obtains a judgment for the recovery of land, he may apply to Court for leave to issue
a writ of possession. He must give notice to every person in actual possession of the whole or part R8 of
the land and may then make an application for leave to issue the writ. The writ directs the sheriff to enter
upon the land and give possession to the plaintiff. By order 45, rule 3 (4), the writ may include provision for
the enforcing of any payment of money adjudged or ordered to be paid by the judgment or Order which is
being enforced by the writ of possession.”

13.3.6 Charging Order

A charging order is an order made by the court charging some specified property of the judgment debtor
with the ability to satisfy the judgment debt and is thus a mode of enforcement of money judgments and
orders. It operates to give the judgment creditor security for the payment of the amount due under the
judgment and produces the fruits of the judgment not at the time when the charge is imposed but at the
time when the charge is enforced.

13.4 INTERPLEADER PROCEEDINGS

The proceedings are brought by a claimant when in the process of enforcing a judgement the sheriff has
seized goods which do not belong to the defendants. The claimant must within days give a written notice
to the Sheriff claiming ownership of the goods stating that the goods which the sheriff seized do belong to
the defendant. The sheriff then writes the judgement creditor within seven days notifying him of the claim.
If the judgement creditor does not agree to the substance of the claim, he will have to object by writing the
sheriff within days. Then the sheriff issues inter-pleader summons. Inter-pleader proceedings are heard by
a judge in chambers to determine ownership of the property. If the court is convinced that the goods do
belong to the claimant the court will order that the goods be released to him.
If in the process the sheriff had seized the claimant’s goods from a wrong address, the claimant can sue the
Attorney General for damages suffered. The claimant himself must swear the affidavit. However, only if
the claimant is abroad, it is permissible for his counsel to swear it on his behalf.
Under Order XLIII, Rule 1 of the High Court Rules, Relief by way of interpleader may be granted:
a. Where the person seeking relief (in this Order called the application) is under liability for any debt,
money, goods or chattels, for or in respect of which he is or expects to be, sued by two or more
parties (in this Order called the claimants) making adverse claims thereto;
b. Where the applicant is a Sheriff or other officer charged with the execution of process by or under
the authority of the Court, and claim is made to any money, goods or chattels taken or intended to
be taken in execution under any process, or to the proceeds or value of any such goods or chattels
by any person other than the person against whom the process is issued.

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Matters to be proved by applicant
The applicant must satisfy the Court or a Judge by affidavit or otherwise
a. that the applicant claims no interest in the subject-matter in dispute, other than for charges or
costs; and
b. that the applicant does not collude with any of the claimants; and
c. that the applicant is willing to pay or transfer the subject-matter into Court or to dispose of it as
the Court or a Judge may direct.

13.5 CONTEMPT OF COURT

The court has generally, inherent jurisdiction to commit persons for contempt of court. The jurisdiction is
intended for two purposes:
1. To enforce obedience to court orders or judgments;
2. To safeguard the court’s authority and to protect the administration of justice from improper
interference and abuse.

13.5.1 Kinds of Contempt

Contempt of court can be classified as either criminal contempt, which consists of words or acts which
impede or interfere with the administration of justice or which create a substantial risk that the courts of
justice will be seriously impeded or prejudiced. Secondly, contempt in procedure otherwise known as civil
contempt consists of disobedience to judgments, orders, or other process of the court and which involve a
private injury. The distinction between the two is that criminal contempt is that contempt which arises from
either word spoken or written, or acts which will impede the administration justice while civil contempt
relates to those actions of disobedience. Criminal contempt is that the courts dignity and authority is
maintained.
Contempt in the face of the court is not necessarily contempt in the “looking of the court”. It is essentially
contempt which the court can punish of its own motion. It really means contempt in the cognizance of the
court. in the case of Balogh v Crown Court of St Albans 1974 3 All ER 283 – Court of Appeal decision delivered
by Lord Denning:
“At common law, a judge of the superior courts had jurisdiction to punish summarily of his own motion for contempt
of court whenever there had been a gross interference with the course of justice in a case that was being tried, was about
to be tried, or was just over whether the judge had seen the contempt with his own eyes or it had been reported to him.”
In essence, contempt in the face of the court is that contempt which has been committed in the judge’s
own cognizance, i.e. even if the judge hasn’t seen with his own eyes. It can happen within the precincts of
the court. The judge acts at his own instance, instantly, summoning the alleged offender to stand in the
dock and explain his/her behaviour. There is no summons issued.
Opinion of Lord Denning at page 288E: “the power of summary punishment is a great power, but it is a
necessary power. It is given so as to maintain the dignity and authority of a judge and to ensure a fair trial.
It is to be exercised by the judge off his own motion only when it is urgent and imperative to act immediately
so as to maintain the authority of the court to prevent disorder, to enable witnesses to be free from fear
and jurors from being improperly influenced. It is of course to be exercised with scrupulous care and only
when the case is clear and beyond reasonable doubt and only when the case is clear and beyond reasonable
doubt. A judge should act of his own motion only when it is urgent and imperative to act immediately. In
all other cases, he should not take it on himself to move. He should leave it to the Attorney General or to
the party aggrieved to make a motion in accordance with the rules in Order 52 of the RSC. The reason is so
that he should not appear to be both prosecutor and judge for that is a role which does not become him
well.” This procedure can only be employed where it imperative, necessary, and urgent otherwise failure to
do so would impede the proceedings. It doesn’t have to be against the judge but may well be even against

65
 the opponent on the other side. Under section 116 of the Penal Code, the judge can refer the matter to the
DPP to institute proceedings.
The proceedings that govern contempt in Procedure or civil contempt can be found under Order 52 of the
RSC which is very clear on how you move the court where you are alleging that there has been contempt
arising from someone’s disregard of a court decision. Order 52/2 provides that you have to make an
application for leave to apply for contempt made ex parte and supported by a statement which must contain
the name, address of the applicant; name, address, and description of the alleged contemnor. The statement
will also contain the grounds upon which committal is sought. In addition to the statement, one should
also have an affidavit verifying facts relied upon in the statement. One normally moves the judge in
Chambers.

13.6 WRIT OF SEQUESTRATION

Sequestration is a process by which property is removed from the possessor pending compliance with a
court order. The court may appoint a sequestrator to seize the property and assets of a judgment debtor or
indeed assets of the contemnor until compliance is achieved. The effect of sequestration is to deprive the
contemnor of any power or authority to deal with his property and assets affected by the said writ. It is
issued after an order has been made. Order 45/5 of the RSC provides that where a person disobeys a
judgment or order requiring him to abstain from doing an act, then subject to the provisions of these rules,
the judgment or order may be enforced by one or more of the following means:
i. With the leave of court, a writ of sequestration against a property of that person;
ii. Where the person is a body corporate, with the leave of court, a writ of sequestration against the
property of a director or officer of that body;

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