CIVIL PROCEDURE

HEAD 7 (I)

SUPERIOR COURTS

NOTES

BY STATE COUNSEL R SIMEZA

2017 – 2018

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 SUPERIOR COURTS
DESCRIPTION OF THE COURSE
This course is intended to introduce a student to the practice of the law. The student will learn how to issue process in
Superior Courts and before certain Tribunals. The student will also team about (he appeal process and interlocutory
applications during the course of the proceedings. The course will stress the importance of drafting proper legal documents
to facilitate an effective trial and appeal process.

COURSE OUTLINE AND READING MATERIAL

In addition to the recommended readings prescribed herein, additional reading material such as case law will be
circulated ahead of each class. Reading should be completed before the start of each class on the scheduled
day to facilitate class discussion and to make it easy for the student to understand the subject under
discussion.
PART ONE
1. Course organization and Overview
2. Introduction to the High Court of judicature
(i) Composition of the High Court
(ii) Divisions of the High Court
(iii) Jurisdiction of the Court
(iv) Jurisdiction as regards Practice and Procedure
COMMENCEMENT AND PROGRESS OF PROCEEDINGS
3. Writ of Summons
(i) Form of writ
(ii) Endorsement of claim
(iii) Endorsement of Plaintiffs and Advocate’s address
(iv) Duration of writ and renewal
(v) Concurrent writ
(vi) Address for service
4. Originating Summons
(i) Form of originating summons
(ii) Contents of summons
(iii) Duration of originating summons

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(iv) Concurrent originating summons
(v) Evidence
(vi) Interlocutory proceedings
(vii) Hearing of originating motion
5. Originating Motion
(i) Form of notice of motion
(ii) Matters appropriate tor originating motion
(iii) interlocutory motions
(iv) Contents of notice of motion
(v) Evidence
(vi) Interlocutory applications
(vii) Hearing of originating motion
6. Petition
(i) Definition and use of petition
(ii) Form of petition
(iii) Amendment of petition
(iv) Evidence
(v) Types of petition –
a. Election Petition
b. Petition under Article 28 of the Constitution
c. Divorce petition
d. Winding up petition
(vi) Hearing of petitions
7. Service of Process
(vii) Who qualifies for service of process
(viii) Acknowledgement of service
(ix) Mode and time for service
(x) Substituted service
(xi) Personal service
(xii) Service on Government Department, Government officer, Partners
(xiii) Service out jurisdiction

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8. Appearance
(i) Mode of entering appearance
(ii) Memorandum of appearance
(iii) Conditional appearance
(iv) Motion to set aside writ
(v) Defenders address for service
(vi) Time of appearance
(vii) Appearance to originating summons
9. Default Judgment
(i) Liquidated demand endorsed
(ii) Claim for pecuniary damages endorsed
(iii) Claim for possession of chattel, land, specific performance etc
(iv) Claim for declaratory relief, injunctions etc
(v) Setting aside judgment by default
10. Parties to proceedings
(i) Capacity to sue –
a. Minors
b. Patients
c. Executors & Administrators
d. Companies
e. Partners & Firms
f. Unincorporated bodies
g. Representative actions
(ii) Third party proceedings
(iii) Joinder of parties
(iv) Non Joinder and Misjoinder of parties
(v) Alteration of parties
11. Pleadings
(i) Cause of action
(ii) Pleadings formal requirements
(iii) Matters which must be specifically pleaded

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 (iv) Particulars of pleadings
(v) Admissions and denials
(vi) Statement of Claim
(vii) Defence
(viii) Reply
(ix) Defence by set-off
(x) Counter-claim and defence to counter-claim
(xi) Striking out Readings and endorsements
(xii) Close of pleadings
12. Particulars of Claim
(i) Further particulars
(ii) Judgment in case of default
(iii) Amendment of claim
13. Amendment
(i) Amendment of writ without leave
(ii) Amendment of pleadings without leave
(iii) Amendment of writ or pleadings with leave
(iv) Amendment of other originating process
(v) Amendment of judgment and orders
14. Affidavits
(i) Form of affidavit
(ii) Affidavit by two or more deponents
(iii) Affidavit by illiterate or blind person
(iv) Defective affidavit
(v) Content of affidavit
(vi) Certificate of Exhibit
(vii) Amendment of affidavit
(viii) Rules in taking affidavit
15. Withdrawal & Discontinuance of suits
(i) Discontinuance of action
(ii) Effect of discontinuance

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 (iii) Stay of subsequent action until costs paid
(iv) Withdrawal of summons
16. Orders for Directions
(i) Application for directions for trial
(ii) Extension of time
(iii) Scheduling conference
17. Admissions
(i) Notice of admissions
(ii) Judgments on admissions
(iii) Judgment by consent
(iv) Settlement of issues
18. Security for Costs
(i) Form of application
(ii) When application may be made
(iii) Manner of giving security Week Ten
19. Discovery and inspection of documents
(i) Listing of documents
(ii) Production & inspection of documents
(iii) Order for discovery of particular documents in opponents or third party’s hands
(iv) Order for production for inspection of documents
(v) Bundles of documents
(vi) Documents privileged from production
(vii) Agreed bundle of documents
20. Interrogatories
(i) Discovery by interrogatories
(ii) Form and nature of interrogatories
(iii) Interrogatories following court order
(iv) Failure to comply with order
(v) Use of answers to interrogatories at trial
21. Preliminary Motions/Disposal of case on point of law
(i) Determination of question of law or construction

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 (ii) Application under order 14A RSC
(iii) Application under order 33 rule 3 RSC
22. Interlocutory injunctions, interim attachment of property
(i) Application for injunction
(ii) Detention, preservation etc. of subject matter of cause or matter
(iii) Order for sate of perishable goods
(iv) Ex-parte injunction application
(v) Interlocutory injunction in support of arbitral proceedings
(vi) Mareva injunction
(vii) Appeal against grant or refusal of interlocutory injunction
(viii) Discharge of injunction
(ix) Order for early trial
PART TWO
TRIAL, JUDGMENT AND ENFORCEMENT
23. Place end Mode of Trial and setting down for Trial
(i) Time within which to set down
(ii) Documents to lodge when setting down action for trial
(iii) Non-appearance of plaintiff or defendant at trial
(iv) Counter-claim where plaintiff does not appear
(v) Setting aside judgment made in absence of party
24. Judgment
(i) Delivery of judgment
(ii) Rate of interest on judgment
(iii) Payment of judgment sum by instalments
25. Review of Judgment and Orders
(i) Power to review and time within which a party may apply for review of Judgment/ Ruling/Order
(ii) Application for leave to review
(iii) Grounds for review
26. Costs
(i) Time within which to file bill of costs before Taxing Officer - party to party
(ii) What to include in the bill of costs

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 (iii) Documents to file with the Taxing Officer
(iv) Taxation of bill of costs
(v) Fees payable to the Advocate by his own client
(vi) Advocates ‘disputed bill to Taxing Officer
27. Execution
(i) Property liable to execution
(ii) Writs of execution –
a) Writ of fieri facias
b)Writ of possession
c) Writ of delivery
28. Garnishee proceedings
(i) Attachment of debt due to judgment debtor
(ii) Service and effect of order to show cause
(iii) Dispute of liability by garnishee
29. Interpleader
(i) When relief is available
(ii) Matters to be proved by applicant
30. Stay of Execution
31. Committal
(i) Application for leave
(ii) Application for order after leave is granted
(iii) Hearing of the motion for committal
(iv) Writ of sequestration
32. The Debtor’s Act
(i) Arrest of Defendant about to quit Zambia
(ii) Arrest of judgment debtor about to leave Zambia
(iii) Discharge on payment
PARTICULAR OF PROCEEDINGS
33. Arbitration Proceedings
(i) Matters subject to arbitration
(ii) Application of (UNCITRAL) Model Law to arbitral proceedings

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 (iii) Arbitration agreement and substantive claim before court
(iv) Interim measures while at arbitration
(v) Form and content of award
(vi) Recognition and enforcement of awards
(vii) Application to set aside award
34. Mediation
(i) Reference of matter to mediation
(ii) Registration of mediation settlement
(iii) Enforcement of Settlement Agreement
35. Assessment of damages
(i) Scope of damages to be assessed
(ii) Form of application
(iv) Evidence at the hearing
PART FOUR
APPEALS AND REVIEWS
36. Judicial Review
(v) Cases appropriate for application
(vi) Application for leave
(vii) Stay of the decision
(viii) Delay in applying for relief
(ix) Filing motion for judicial review
(x) Statements and affidavits
(xi) Hearing of application for judicial review
(xii) Appeal from a Judge’s order
(xiii) Interested parties - right to be heard
37. Habeas Corpus applications
38. 36. Appeal to Judge in Chambers
(i) Appeal from decision of Registrar, Master, Deputy Registrar or District Registrar
(ii) Appeal from decision of High Court Judge
(iii) Appeal from decision of Court of Appeal Judge
39. Court of Appeal

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 (i) Introduction to the Court of Appeal and its jurisdiction
(ii) Practice and procedure in the Court of Appeal
(iii) Filing Notice of Appeal and Memorandum of Appeal
(iv) Interlocutory applications vis amendment of Notice of appeal, Grounds of appeal, Record of
appeal
(v) Preparing Record of Appeal
(vi) Heads of Arguments
(vii) Appeals from interlocutory orders
(viii) Appeal from final judgment
40. The Constitutional Court
(i) Introduction to the Constitutional Court and its jurisdiction
(ii) Practice and procedure
(iii) Commencement of proceedings –
a. Filing Petition
b. Originating notice of motion or originating summons
c. Answer to petition, originating notice of motion or originating summons
(iv) Amendment of petition, originating notice of motion or originating summons
(v) Appeals and cross appeals
(vi) Leave to appeal
(vii) Notice of appeal, Record of Appeal
41. The Supreme Court
(i) Introduction to the Supreme Court and its jurisdiction
(ii) Practice and Procedure
(iii) Preparing Notice of Appeal, Cross Appeal and Memorandum of Appeal
(iv) Appeals against interlocutory orders and final judgment
(v) Interlocutory applications-
a) Amendment to Notice of appeal/cross appeal
b) Amendment to Record of appeal
(vi) Preparing Record of Appeal
(vii) Heads of arguments
(viii) Judgment

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 PART FIVE
TRIBUNALS
42. Tax Appeals Tribunal
(i) Establishment of the Tribunal
(ii) Composition of adjudicators
(iii) Jurisdiction
(iv) Mode of commencement of process
(v) Interlocutory applications
(vi) Appeals from decisions of the Tribunal
43. Lands Tribunal
(i) Establishment of the Tribunal
(ii) Composition
(iii) Jurisdiction
(iv) Mode of commencement of action
(v) Interlocutory applications
(vi) Appeals from decisions of the Tribunal

RECOMMENDED TEXTS AND STATUTES

Odgers on Pleadings and Practice Button & Leake Chitty & Jacobs
Rules of the Supreme Court of England, 1964 (White Book)
Atkin's Court Forms
Constitutional Court Act, 2016
Constitution of Zambia Cap 1
Supreme Court of Zambia Act Cap 25
Court of Appeal Act No. 7 of 2016
High Court Act, Cap 27
Tax Appeals Tribunal Act No. 1 of 2015
Lands Tribunal Act No. 39 of 2010

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 SUPERIOR COURTS

HIGH COURT

Article 133 of the Constitution establishes the High Court of judicature for Zambia. Chief Justice is ex oficio
member of the High Court. Shamwana v Mwanawasa (1993/1994) ZR p.149.

JURISDICTION

Article 134 of the Constitution provides that the High Court has – unlimited and original jurisdiction in civil and
criminal matters; appellate and supervisory jurisdiction; and jurisdiction to review decisions.

Unlimited Jurisdiction: Means Jurisdiction to hear any matter on any point of law. It means there is no
cause beyond its competence and authority. It means that the High Court has no territorial limits – Section
13 of High Court Act. The jurisdiction is unlimited but not limitless - means it must adjudicate in accordance
with the law and must comply with procedural requirement. Zambia National Holdings Limited & UNIP v A-
Gen (1993/1994) ZR p. 115.

Original Jurisdiction: Means it’s a Court of first instance. You can issue court process in there.

Appellate Jurisdiction: Means it sits as an appellate Court in certain matters. e.g. Lands Tribunal Act No.
39 of 2010 in Section 16, provides that appeals from the Tribunal go to the High Court. Rating Act No. 12 of
1997 in Section 36 provides for appeals from the decision of the Rating Appeals Tribunal to the High Court.

Supervisory Jurisdiction: A puisne Judge can review a case stated by the Magistrate. The High Court
confirmed the supervisory jurisdiction of the High Court in Mwanza v The People (1976) ZR 154, it was held
that- “a decision of the Subordinate Court can come up before the High Court by virtue of Section 337
of the CPC. Also under Section 9 of CPC when it comes up for confirmation of sentence.”

Jurisdiction to review decisions as prescribed: The jurisdiction in Article 134 (b) relates to supervisory
and appellate jurisdiction of the High Court over Subordinate Court decisions. However the jurisdiction
envisaged in Article 134 (c) relates to review of decisions of public or constitutional office bearers whose
decisions cannot ordinarily be questioned. Read Article 134 (c) in conjunction with Article 267 (4).

DIVISIONS OF THE HIGH COURT

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Section 3(1) of the High Court Act as amended provides that the High Court shall have the following divisions:
the Industrial Relations Court; the Commercial Court; the Family Court; the Children’s Court; and such other
specialized Court as the Chief Justice may prescribe by statutory instrument.

The categories of matters over which a particular division of the Court has jurisdiction is subject to the High
Court Act and any other written law to be prescribed by the Chief Justice by statutory instrument.

All Judges of the High Court have equal power, authority and jurisdiction and any judge can exercise all or
any part of the jurisdiction vested in the Court.

PRACTICE RULES IN THE DIFFERENT DIVISIONS OF THE HIGH COURT

The Commercial Court
Order 53 rule 2 of the High Court Rules provides that every commercial action shall be prosecuted in
accordance with the commercial actions Rules in Order 53 rule 2. If there is any inconsistency between the
Commercial Court rules and the rules applicable to the general list in relation to commercial actions, then the
Commercial Court rules in Order 53 rule 3 shall to the extent of the inconsistency prevail in that commercial
action. In Setrec Steel and Wood Processing Ltd and Others v Zambia National Commercial Bank Plc Appeal
No. 39 of 2007, the Supreme Court held that “the rules for commercial actions must not be read in isolation
from, or in derogation from the Rules of the High Court general list.” Equally the High Court in Otk Ltd v
Amanita Zambiana Ltd & 3 Others 2005/HPC/0199 it was held that High Court Rules as they apply on the
general list are not to be ignored on the commercial list.

The Industrial Relations Court

Though the Industrial Relations Court is a division of the High Court, the practice and procedure in the IRC
is still governed by the Industrial Relations Court Rules under Cap 269. Commencement of actions in that
Court is still governed by Rule 4 of the Rules by filing a complaint (as the case may be) followed by an
Answer. The IRC is still required under Section 85(5) of the Industrial & Labour Relations Act Cap 269 not to
be bound by the Rules of evidence and that the main object of the Court is to do substantial justice between
the parties before it.

JURISDICTION AS REGARDS PRACTICE AND PROCEDURE

Section 10 of the High Court Act provides that the jurisdiction vested in the High Court as regards practice
and procedure, shall be exercised in the manner provided by the High Court Act, the Criminal Procedure

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Code, the Matrimonial Causes Act 2007 or any written law or by such rules, orders or directions of the Court
and in default thereof in substantial conformity with the Supreme Court Practice Rules, 1999 (White Book)
and the law and practice applicable in England in the High Court of Justice up to 31 st December 1999. The
Civil Court Practice Rules, 1999 of England (Green Book) and any Civil Court practice rules issued in England
after 31st December 1999 do not apply to Zambia – Act No. 7 of 2011. Thus, the High Court jurisdiction as
regards practice and procedure is exercised as provided in the High Court Act and the other statutes
mentioned and that were our own rules are deficient, in substantial conformity with the White Book. Therefore
the English Practice and Procedure Rules can only be resorted to when there is a lacuna in our own rules
and procedures. Refer to Isaac Lungu v Mbewe Kalikeka Appeal No. 114/2013. The English Law (Extent of
Application (Amendment) Act No. 6 of 2011.

COMMENCEMENT AND PROGRESS OF PROCEEDINGS

Letter before court process

There must be attempts to settle a dispute before proceeding to issue court process. It is usual and almost
the invariable practice for the Advocate for the prospective Plaintiff to send a letter of demand to the
prospective defendant.

It is not merely a matter of courtesy to inform the defendant of the claim being made against him but it gives
the Plaintiff an opportunity to state the grounds of his claim with clarity and precision which will be of significant
importance if these grounds are supported by evidence at trial though equally it would count against the
Plaintiff if the evidence at trial differs from the grounds originally put forward in the letter of demand.

The demand letter also compels the defendant to answer the claim with sufficient particularity otherwise his
own evidence at trial could be weighed against his initial reaction to the claim. There is however no legal
obligation to send a letter before action.

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 WRIT 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.
 Chikuta v Chipata Rural Council (1974) ZR 241
 Juliet Chabakale and Another v Steward Tembo & Another (2012) ZR 194.
 Amber Louise Guest and Another v Beatrice Mulako Mukinga and Attorney General (2011) IZR 372
The Supreme Court held in the above cases that there is no case in the High court where there is a choice
between commencing an action by a writ of summons or Originating summons. That every action has to be
commenced by writ of summons.

Plaintiff’s address
Order 7 rule 1 of HCR sets a mandatory requirement for the plaintiff suing by an Advocate to endorse upon
the writ;

a) Physical, postal and electronic address of the plaintiff

b) His own name or firm and his own place of business, postal address, physical address and
electronic address
c) If the place of business & postal address is more than 10 km from the Registry at which the
writ was issued, a proper place and postal address of which is not more than 10 km from the
Registry should be given

 Leopald Walford (Zambia) Limited V Unifreight (1985) ZR 203

 Inyatsi Construction Limited V Pouwels Construction Zambia Limited & Another 2013/HPC/0265
In the above cases, the court took the view that it was necessary or a mandatory requirement for the plaintiff’s
full address as well as that of his Advocates to be endorsed on the writ failing which the writ would be set
aside for irregularity.

Address of service
The address for service referred to above is the place where court process and other documents may be left,
transmitted to or posted if required to be served on the plaintiff or his Advocates.

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Endorsement of claim
Order 6 Rule 4 – Every writ shall be endorsed with a statement of the nature of the claim made or relief
sought.

Time for Appearance

Must state a time within which appearance must be entered by the Defendant.

Sealing
Shall be sealed by the proper officer and thereafter be deemed to be issued.

Tested
Shall be tested in the name of the Chief Justice.

Duration of writ & renewal

Order 9 rule 1 provides that a writ shall be in force for a period not more than 12 months from date of issue.
If the writ is not served before the expiry of the 12 months period, the plaintiff can apply for leave to renew
the writ before the expiration of the 12 months period. If the court is satisfied that that reasonable efforts
have been made to serve on the defendant or for other good reasons, it may grant leave to renew for 6
months from date of such renewal.

Concurrent writ
A plaintiff may at any time during 12 months after issuing the original writ of summons, issue one or more
concurrent writs. Each concurrent writ shall bear the same day as the original writ and to be marked with a
seal bearing the word “concurrent”. A Concurrent writ can only be in force during the life of the original writ

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 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 construction 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 Beatrice Mulako Mukinga & Attorney
General, the court after addressing its mind to order 6 rule 2 of the High court rules as amended as 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.

Content of summons
Every originating summons must include a statement of the questions on which the Plaintiff seeks the
determination or direction of the court or concise statement of the relief or remedy claimed with sufficient
particulars to identify the cause of action.

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

Amendment of originating summons

Originating summons may be amended with leave of court before the final order is made by the court

Duration of summons

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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.

Concurrent originating summons

A concurrent originating summons may be issued in the same manner mutatis mutandis as a concurrent writ
of summons.

Evidence
Evidence is given by affidavit

Hearing of the summons

The originating summons are heard in chambers on affidavit evidence.

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 ORIGINATING MOTION
Contents of 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
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.

Interlocutory proceedings
Proceedings commenced by originating notice of motion are as much an action as proceedings commenced
by writ.

Hearing motions
They are listed for hearing in chambers

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.

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 PETITION

DEFINATION AND USE OF PETITION

A petition is a written application made to the court in contrast to a motion which is primarily an oral application
made in court and a summons which initiates an application made in the first instance in chambers. A petition
is probably the most ancient form of written application to the court. It may be used only as an originating
process where the Rules of court or by or under any Act the proceedings in question are required or
authorised to be begun by petition. Refer to order 9 of the Rules of the Supreme Court of England of 1965.

Form of Petition
I. A petition whilst containing many of the matters commonly found in pleadings is not for purposes of
the Rules of the Supreme Court of England a pleading.
II. The petition must set out as concisely as possible in consecutively numbered paragraphs the facts
(but not the evidence by which those facts will be proved) upon which the petitioner bases his claim
to relief together with any necessary particulars.
III. The body of the petition must conclude with the prayer for the exact relief or remedy sought. There
are added the time honored words “And your Petitioner will ever pray", etc
IV. When the Petitioner acts by a solicitor, the petition must be indorsed with petitioner’s name and
address, the Advocates name or firm and business address including the electronic address. The
Advocates telephone number should be included and where a petitioner acts in person; the petition
must be indorsed with the address of his residence or an address for service.

Amendment of Petition
At any stage of the proceedings, the court may allow the petitioner to amend his petition. An application for
leave to amend is made by summons to the Deputy Registrar like every other application for leave to amend.

Service of Petition
A petition must be served personally in the same way as all other forms of originally process. No form of
acknowledgement of service of a petition is required. The normal rules as to parties apply to petitions.

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Evidence on Petition
Evidence on petition is usually given by affidavit and copies of the affidavits and any exhibits ought to be
served on all interested parties.

Hearing of Petition
Petitions are listed and heard in open court.

Examples in which the use of a petition is required or authorised by Law are

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 councilor 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.

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 SERVICE OF PROCESS

Service of Process is governed by Order 10 of the High Court Rules, Chapter 27 of the Laws of Zambia.

Who qualifies for service of process: “Personal service of a petition, notice, summons, order or other
document, of which service is required may be made by any person”

Acknowledgment of service

Order 10 rule 3 of the High Court Rules provides: “(3) Any person serving a writ of summons or other
originating process, default of appearance to which would, under Order XII, entitle the plaintiff to
enter final judgment, shall request the party served to acknowledge receipt by signing on the original
or other copy of the process or on some other document tendered for the purpose, and the fact of
any refusal to sign shall be so endorsed by the person serving.”

Mode and time for service

Order 10 rule 2 of the High Court Rules states as follows on mode and time for service: “(1) All writs, notices,
pleadings, orders, summonses, warrants and other documents, proceedings and written communications, in
respect of which personal service is not requisite, shall be sufficiently served if left at the address for service
of the person to be served, as defined by Orders VII and XI, with any person resident at or belonging to such
place, or if posted in a prepaid registered envelope addressed to the person to be served at the postal address
for service as aforesaid: Provided that, where service under this rule is made by registered post, the time at
which the document so posted would be delivered in the ordinary course of post shall be considered as the
time of service thereof."

Substituted service

Order 10 rule 3 provides that- “Where personal service of any writ, notice, pleading, summons, order, warrant
or other document, proceeding or written communication is required and it is made to appear to the Court or
a Judge that prompt personal service cannot be effected, the Court or a Judge may make such order for
substituted or other service, or for the substitution for service of notice by letter, public advertisement or
otherwise, as may be just. Every application to the Court or a Judge for an order to be made under this rule
shall be supported by an affidavit setting forth the grounds upon which the application is made.”

Personal service

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“Where service is personal, the document to be served shall be delivered to the person to be served himself.
Service shall be completely effected by the delivery of a duplicate or attested copy of any document, without
the exhibition of any original.”

Service on Governmental Department, Government officer

“When the party to be served is in the service of the Government, the Registrar may transmit a duplicate of
the document to be served to the head officer of the department in which such party is employed, for the
purpose of being served on him, if it shall appear to the Court or a Judge that it may be most conveniently so
served, and such head officer shall cause the same to be served on the proper party accordingly.”

Section 13 of the State Proceedings Act, Chapter 71 of the Laws of Zambia provides:

“All documents required to be served on the State for the purpose of or in connection with any civil
proceedings by or against the State shall be served on the officer of the Attorney-General’s Chambers having
conduct of such proceedings, or, if a legal practitioner in private practice is acting for the State in such
proceedings, on such legal practitioner.”

Service on Partners

“Where partners are sued in the name of their firm, the writ or other document shall be served either upon
any one or more of the partners, or at the principal place within the jurisdiction of the business of the
partnership upon any person having, at the time of the service, the control or management of the partnership
business there; and such service shall be deemed good service upon the firm.

Dies non

Service in a civil cause can not be effected on a Sunday, good Friday or Christmas day.

Certificate of service

In all cases where service of any writ or document shall have been effected by a bailiff or other officer of the
court, a Certificate of Service signed by such bailiff shall be on production be prima facie evidence of
service.

Return

In all cases the bailiff or other officer of the court shall not later than 14 days after receipt of the process
render a return to the court.

23
Endorsement of service

The person serving a court of summons shall within 3 days at most after such service endorse on the writ
the day of the date of service & prepare an affidavit of service . This shall apply to substituted & other service
too.

Service out of jurisdiction

Order 10 rule 16 of the High Court Rules provides: “An application for leave to issue for service out of the
jurisdiction a writ of summons, originating summons, or originating notice of motion or on a concurrent writ of
summons, originating summons or originating may be made ex parte to the Court or Judge on deposit of the
writ, summons or notice with the Registrar together with an affidavit in support of such application. The
affidavit shall state –

(a) the grounds upon which the application is made and the facts which bring the plaintiff's case within the
class in respect of which service out of the jurisdiction may be allowed;

(b) that the deponent is advised and believes that the plaintiff has a good cause of action or right to relief;

(c) in what place or country the defendant resides or probably may be found;

(d) whether the defendant is a citizen of Zambia or not.”

In addition order 10 rule 17 of the High Court Rules provides: “Substituted service out of the jurisdiction of
a writ, summons or notice issued for service within the jurisdiction cannot be ordered but if a concurrent writ,
summons or notice for service out of the jurisdiction is issued then substituted service out of the jurisdiction
of such concurrent writ, summons or notice may be allowed. A writ, summons or notice issued for service
out of the jurisdiction may be ordered to be served by substituted service whether outside the jurisdiction or
within the jurisdiction and either with or without the issue of any concurrent writ, summons or notice.”

CASE LAW

The steps to be taken when a writ is to be issued out of the jurisdiction are: first the writ should be prepared,
second an application to issue the writ out of the jurisdiction must be made to the court; with the writ attached
to the application. Only after the court’s leave has been obtained should the writ be issued.

George Balamoan v Aidan Gaffrey (1971) Z.R 29; The case discusses service of a writ of summons on the
defendant on a Sunday. It was held:

24
- The plaintiff should have served the process upon the defendant at its registered office in South
Africa following leave to that effect being granted.
- The need for service of process to be effected upon the defendant at its registered office is in line
with Order 10, rule 1 of the High Court Rules.

25
 APPEARANCE

Order II of the High Court Rules provides for Appearance.

Mode of entering appearance

Order 11 rule 1 of the High Court Rules provides: “(1) A defendant shall enter appearance to a writ of
summons by delivering to the proper officer sufficient copies of memorandum of appearance in writing or
eletcronically dated on the day of their delivery, and containing the name of the defendant's advocate, or
stating that the defendant is defending in person. The defendant shall at the same time deliver to the proper
officer sufficient copies of the defence and counter claim if any: Provided that no appearance shall be
accepted after entry of Judgment in Default of appearance.

(2) A memorandum of appearance not accompanied by a defence shall not be accepted.”

Memorandum of appearance

Order 11 rule 8 of the High Court Rules provides that the Memorandum of Appearance shall be in Form 18
in the First Schedule, with such variations as circumstances may require. (Find attached Form 18)

Conditional appearance

Order 11 rule 1(4) of the High Court Rules provides: “Any person served under Order VI of these rules
may enter conditional appearance and apply by Summons to the Court to set aside the writ on
grounds that the writ is irregular or that the Court has no jurisdicition.” A party served with a writ may
therefore enter a conditional appearance if he wishes to make an application to the Court to set aside the
said writ as highlighted above.

Appearance with defence

Appearance may be entered together with the defence electronically or by pre-paid registered letter to the
proper officer.

Defendants appearing by one Advocate

If 2 or more defendants in the same action shall appear by the same Advocate and at the same time, the
names of all the defendants so appearing shall be inserted in one Memorandum.

Defendant’s address for service

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Order 11 rule 4 of the High Court Rules states:

“(1) The advocate of a defendant appearing by advocate shall state in the memorandum of appearance -
(a) his own place of business and the postal address thereof; and

(b) if his place of business and postal address or either of them be more than ten kilometers from the
Registry in which the cause or matter is pending, a proper place and postal address or either of them, as
the case may require, which shall be not more than ten kilometers from such Registry; and either of the
addresses which are not more than ten kilometers from such Registry shall be his address for service for
the purposes of these Rules.

(2) Where any such advocate is only agent of another advocate, he shall, in addition to the matters set out
in sub-rule (1), add the name or firm and place of business of the principal Advocate.”

If the memorandum of appearance does not contain the address as stated above or the address is
fictitious, it may be set aside by the court on application by the Plaintiff.

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.

27
 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.
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.

Appearance of Partners

Where persons are sued as partners in the name of the firm, they shall appear individually in their own
names, but all subsequent proceedings, shall, nevertheless continue in the name of the firm.

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.”

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.”

CASE LAW

Bellamano v Ligure Lombarda Limited (1976) Z.R. 267; “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.”

28
 DEFAULT JUDGMENT

Supposing you issued a writ of summons, and the writ was endorsed with a liquidated demand and there is
no appearance within the time allowed, you are within your right to enter final (default) judgment. Where
the writ of summons was issued against several parties, e.g. 6 and out of those 6, 3 of them did not enter
appearance, you can enter final judgment against those who have not entered appearance and then proceed
with the action against those who entered appearance. The judgment must be signed by the Registrar, or
Deputy Registrar. You cannot enter default judgment if process was issued by originating summons,
originating notice of motion or petition. Only available in cases where the process was started by writ of
summons. You will have to proceed to the hearing, with the matter being heard as if the defendant had
entered an appearance.

In the event that your writ of summons is endorsed with a claim for say, pecuniary (unliquidated claim)
damages, you then are required to enter “interlocutory judgment”. For instance, you are claiming the value
of good which were supplied, and the person has not paid, you issue the process but have not quantified the
damage, you cannot enter a default judgment. You enter an interlocutory judgment and then issue a notice
for assessment. This application is made using summons and supporting affidavit. The Interlocutory
Judgment will need to be signed by the D-Registrar. You can then proceed to have the damages assessed
so as to quantify the amount of money that should be paid.

Where your claim is say for possession of a chortle, or land, and there is no appearance which has been
entered by the defendant, you are entitled to enter judgment just like you are entitled to enter judgment where
the claim is for a liquidated demand. The judgment will allow you to repossess that chortle or land [Order
12(1) (10) of the HC Rules]. The above claims are provided for by the Rules.

Where a claim is for a declaratory relief, an injunction or specific performance, and such kind of remedies,
you cannot enter final judgment because there has to be a hearing and a court has to make the
pronouncement. In those instances, you will have to proceed as if the defendant had entered appearance
and proceed with the action until the matter is set down for hearing [Order 12(1)(8)]. Anything not specifically
provided for under the rules you proceed with the action.

All of the above relates to failure to enter appearance. Order 20(1) covers a situation relating to default of
pleading – where a plaintiff fails to enter a defence to a counter-claim, the defendant is within his right to

29
enter final or interlocutory judgment against the plaintiff. Under the current rules the def will not enter
appearance without filing a defence.

Default judgment against the state cannot be entered without the leave of the court even if your claim against
the state is for pecuniary or a liquidated demanded provided for under sec 22 of the State Proceedings Act.
You have to first issue a 14 days’ notice to the Attorney General, and if there is still no defence to the main
or counter-claim or appearance. When the 14 days has lapsed, you then file summons for leave to enter
judgment against the AG. If there is still no appearance, you can then move the court to enter final or
interlocutory judgment against the state.

Setting Aside Judgment

In terms of Order 12 (2) of the HC Rules, were 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.

Also see: Premesh Patel v Rephudim Institute Ltd 2011 1 ZLR 134 – in dealing with an app to set aside a
default judgment, the question is whether a defence on the merit has been raised or not? And whether the
applicant has given a reasonable explanation of his failure to file a defence within a stipulated time. concluded
by saying that, and that it is the disclosure of the defence on the merit which is a more important point to
consider.

Threshold test set through case law: you must not just give a reasonable explanation as to why you’ve
defaulted but must also show a defence on the merits – you must exhibit a copy of the defence.
John WK Clayton v Highbreed 2006 ZLR 70 – repeated the finding of the Jackson case.
With default judgment you don’t make an application, there is a prescribed form. The only time you make an
application is when requesting assessment of unliquidated claims or when setting aside default judgment.

30
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 in an action a Statement of Claim has been served on the defendant, and the defendant has given
notice to defend the action, the plaintiff may, on the ground that the defendant has no defense to the claim,
or to the particular part of such a claim, may apply to the court for judgment against the defendant. This rule,
summary judgment applies to matters were there is plainly no defense which has been disclosed in the
pleadings, or the defense raised is only to part of the claim. Critical thing: lack of defense of the judgment
either to a whole claim or to part of the claim. Usually it will be for liquidated claims that is judgment under
order 13, (if employing the white book).

Summary judgment is different from judgment on admission. Judgment on admission requires that there is
an express admission in a letter, or through the proceedings themselves. Summary judgment is an express
process done in Chambers.

Read on interest on judgment section 2 of the Judgment’s Act, CAP 81 – every judgment of the HC whereby
a sum of money or any costs are to be payable, shall carry interest as may be determined by the court, which
rate shall not exceed the current lending rate as determined by the Bank of Zambia from the date of the
judgment until payment. Mandatory that where a judgment has been granted for a monetary sum, it shall
carry interest, with the rate being at large.

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 PARTIES

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

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

32
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 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.

33
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.”1

In the case of Avalon Motors Limited (in Receivership) v Bernard Leigh Gadsden Motor City Limited(1998)
Z.R. 41 the court stated that: “It would be improper for a current receiver being sued in his own name
by the company as this would amount to suing himself...However when the current receiver is the
wrongdoer (as where he acts in breach of his fiduciary duty or with gross negligence) or where the
directors wish to litigate the validity of the security under which the appointment has taken place or
in any other case where the vital interests of the company are at risk from the receiver himself or
from elsewhere but the receiver neglects or declines to act, the directors should be entitled to use
the name of the company to litigate.”2 (Emphasis ours) Quite clearly, a company under receivership has
no locus standi independent of its receiver. The company only has locus standi independent of its receiver in
certain instances such as those listed in the Avalon case.

PARTNERS AND FIRMS

1. Order 14 rule 7 of the High Court Rules provides that:

“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

1
Ibid….page 146
2
Ibid..page 43

34
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.”

2. 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
members 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. 3”

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.

For instance in Derrick Chitala (Secretary of the Zambia Democratic Congress) v The Attorney General
(1995/1997) Z.R. 91.

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

3
IBID..Page 28

35
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. Such an action would
for instance read: 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.

REPRESENTATIVE ACTIONS

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 have 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 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.

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 held that for a Plaintiff to pursue

36
an action in a representative capacity, there must be common interest with those he purports to be
representing.

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.

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.”

Thus where a party applies to join a defendant to the proceedings for purposes of seeking, contribution,
indemnity or other remedy, such proceedings are known as third party proceedings.

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.

37
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.

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, 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

38
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 case4 “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.”
It is clear from the foregoing that a party can be joined to proceedings even after judgment has been entered
by the court. The Court in the case of Hotelier Limited and Ody’s Works Limited V Finsbury Investments
Limited (2012) Z.R. 17 stated that: “Although order 14 rule 5 of the High court rules makes provision
for adding a person to the proceedings as plaintiff or defendant, it does not fully prescribe the
practice and procedure pursuant to which such quest or desire can be achieved. It can therefore
safely be said that there is a gap in our law as it to practice and procedure for joinder of a party
pursuant to order 14 rule 5 of the High Court rules. Having found that there is a gap in our law and
procedure on joinder, Order 14 rule 5 of the High Court rules should be read with Order 15 rule 6 of
the Rules of the Supreme Court.”5 Therefore, a party that seeks to join another party to an action must

4
Page 56, ibid
5
Ibid at page 26

39
comply with the requirements for joinder as provided under both Order 14 rule 5 of the High Court Rules6
and Order 15 rule 6 of the Rules of the Supreme Court of England. (“RSC”)

The said Order 15 rule 6 (2) and (3) of the RSC states that: “… at any stage of the proceedings in any cause
or matter the Court may on such terms as it thinks just and either of its own motion or on application –

Order any of the following persons to be added as a party, namely –

(i) any person who ought to have been joined as a party or whose presence before the Court is
necessary to ensure that all matters in dispute in the cause or matter may be effectually and
completely determined and adjudicated upon, or

(ii) any person between whom and any party to the cause or matter there may exist a question or
issue arising out of or relating to or connected with any relief or remedy claimed in the cause or
matter which in the opinion of the Court it would be just and convenient to determine as between him
and that party as well as between the parties to the cause or matter.

An application by any person for an order under paragraph (2) adding him as a party must, except
with the leave of the Court, be supported by an affidavit showing his interest in the matters in dispute
in the cause or matter or, as the case may be, the question or issue to be determined as between him
and any party to the cause or matter.”

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.”7

6 Chapter 27 of the laws of Zambia

7 Ibid page 109

40
ALTERATION OF PARTIES

Order 16 of the High Court Rules states: “(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.

41
 PLEADINGS

INTRODUCTION

The Editorial Introduction to Order 18 of the Rules of the Supreme Court of England states that: “The general
import of the rules in this order may be explained as follows….the statement of claim, the defence
and the reply constitute the “pleadings” in the action. An originating summons is not a pleading nor
is the affidavit in support thereof (lewis v packer (1960) 1 W.L.R 452; (1960) 1 All E.R 720n. The term
“pleading” does not include a petition, summons or preliminary act.

The purpose of pleadings is to ensure that, in advance of trial, “the issues in dispute between the
parties can be defined thereby enabling those matters on which issue is “joined” to be identified.
There are certain formal requirements. A statement of claim must state specifically the relief or
remedy which the Plaintiff claims. Generally, pleadings should contain only the material facts relied
on, but not the evidence by which those facts are to be proved, with necessary particulars and may
include any matter which has arisen at any time, whether before or since the issue of the writ. A party
by his pleading may raise any point of law. Certain matters must be specifically pleaded. Any
allegation of fact made by a party in his pleadings is deemed to be admitted by the opposite party
unless it is traversed by that party in his pleadings. If there is no reply to a defence a denial of the
defence is implied and issue is joined. For the purpose of pleadings, a defendant’s counterclaim is
treated as a statement of claim and a plaintiff’s defence to counterclaim as a defence. There comes
a point where the pleadings are “closed” or deemed to be closed.

The court may order that the action be tried without pleadings or without further pleadings, but on
the basis of a “statement of issues in dispute”.

SERVICE

Statement of Claim
The Plaintiff must serve a statement of claim on the defendant or, if there are two or more defendants, on
each defendant, and must do so when the writ is served on that defendant.8

Defence

8
Order 18 rule 1 of the Rules of the Supreme Court of England, 1965 Edition.

42
1. A defendant who gives notice of intention to defend an action must, unless the Court gives leave to the
contrary, serve a defence on every other party to the action who may be affected thereby before the
expiration of 14 days after the time limited for acknowledging service of the writ and the statement of
claim.9
2. If there are several defendants and their interests are not identical, if for instance, one has a special
defence peculiar to himself, they should sever (i.e they should serve separate defences). 10
3. Quite clearly, if an action has several Defendants who all have peculiar defences to the Plaintiff’s claims,
each one of them must file and serve their own separate defence before the expiration of 14 days after
the time limited for acknowledging service of the writ.

Reply and Defence to Counterclaim

i. A plaintiff on whom a defendant serves a defence must serve a reply on that defendant.
ii. A plaintiff on whom a defendant serves a counterclaim must, if he intends to defend it, serve on that
defendant a defence to counterclaim.
iii. Where a plaintiff serves both a reply and a defence to counterclaim on any defendant, he must
include them in the same document.
iv. A reply to any defence must be served by the plaintiff before the expiration of the period stated in
the orders for directions for trial, and a defence to counterclaim must be served by the plaintiff before
the expiration of the period stated in the order for directions for trial. 11
v. The defence to counterclaim must be pleaded in accordance with the rules applicable to the defence
to a statement of claim. Unless the plaintiff serves a defence to counterclaim, and specifically
traverses every allegation of fact which he does not intend to admit, he will be deemed to admit them.
The plaintiff may also in his defence to counterclaim himself counterclaim against the defendant or
he may issue a third party notice in respect of the counterclaim against a person not a party to the
action. A person brought into the action by the counterclaim must also serve a defence to
counterclaim.”12

9 Order 18 rule 2 of the RSC

10 Order 18/2/3 of the RSC
11 Order 18 rule 3 of the RSC
12 Order 18/3/3 of the RSC

43
 vi. Therefore, where a defendant serves a counterclaim, a plaintiff who intends to defend the action
must serve a defence to counterclaim. Further, if a plaintiff serves a reply in addition to the defence
to the counterclaim, he must serve both the reply and defence to counterclaim in one document.

PLEADINGS SUBSEQUENT TO REPLY

No pleading subsequent to a reply or a defence to counterclaim shall be served except with the leave of the
court.13

FORMAL REQUIREMENTS OF PLEADINGS

Every pleading in an action must bear on its face-
(a) The year in which the writ in the action was issued and the letter and number of the action,
(b) The title of the action,
(c) The division of the High Court to which the action is assigned,
(d) The description of the pleading.

Every pleading must, if necessary, be divided into paragraphs numbered consecutively, each allegation being
so far as convenient contained in a separate paragraph.

Dates, sums and other numbers must be expressed in a pleading in figures and not in words.

Every pleading of a party must be indorsed:

a. Where the party sues or defends in person, with his name and address; and
b. In any other case, with the name of the firm and business address of the solicitor by whom it was
served and also (if the solicitor is the agent of another) the name or firm and business address of his
principal.
Every pleading of a party must be signed by counsel, if settled by him, and if not, by the party’s solicitor or
by the party, if he sues or defends in person.14

Where a pleading does not comply with the stated formal requirements, it might be set aside for irregularity
pursuant to order 2 rule 2 of the RSC.

13 Order 18 rule 4 of the RSC

14 Order 18 rule 6 of the RSC

44
FACTS, NOT EVIDENCE, TO BE PLEADED
(1) Every pleading must contain, and contain only, a statement in a summary form of the material facts
on which the party 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.
(2) Without prejudice to paragraph (1), the effect of any document or the purport of any conversation
referred to in the pleading must, if material, be briefly stated and the precise words of the document
or conversation shall not be stated except in so far as those words are themselves material.
(3) A party need not plead any fact if it is presumed by law to be true or the burden of disproving it lies
on the other party, unless the other party has specifically denied it in his pleading.
(4) A statement that a thing has been done or that an event has occurred, being a thing or event the
doing or occurrence of which as the case may be, constitutes a condition precedent necessary for
the case of a party is to be implied in his pleading.15
Quite clearly therefore, pleadings must contain material facts only and they must be stated in a summary
form. The learned authors of Halsbury Laws of England 16 define material facts as: “All facts which must
be proved in order to establish the ground of claim or defence are material.”17

Further, a ‘material fact’ has been defined in Black’s Law Dictionary 18 as “‘Matters significant or essential
to the issue at hand.”

These requirements should be strictly observed (per May L.J in Lipkin Gorman v Karpnale Ltd (1989) 1 W.L.R
1340 at 1352). Pleadings play an essential part in civil actions and their primary function purpose is to define
the issues and thereby inform the parties in advance of the case which they have to meet, enabling them to
take steps to deal with it; and such primary purpose remains and can still prove of vital importance and
therefore it is bad law and bad practice to shrug off criticism as a mere pleading point. 19

It cannot be too often stated that the relevant matters must be stated briefly, succinctly and in strict
chronological order. Pleadings should be as brief as the nature of the case will admit. The court has inherent

15 Order 18 rule 7 of the RSC

16 Vol 36, 4th Ed
17 ibid…page 12, paragraph 14
18 Bryan Garner, 8th Edition, page 629
19 Order 18/7/4 of the RSC

45
jurisdiction to deal with prolix documents. But no document is prolix which merely states facts that are
material, however numerous. The same person or thing should be called by the same name throughout the
pleading.20

Facts not law to be pleaded

The rule prohibits the old practice of pleading the law affecting the case being raised. There is a vital
distinction between pleading law, which is not permitted, and raising a point of law in a pleading which is both
permitted and is frequently necessary. Pleading law tends to complicate the pleading and obscure the facts
giving rise to the case being advanced; raising a point of law may define or isolate an issue or question arising
on the facts as pleaded and indeed be essential if the case is to be advanced properly. 21
Facts not evidence to be pleaded

Every pleading must contain only a statement of the material facts on which the party pleading relies and not
the evidence on which they are to be proved (per farwell L.J in N.W Salt Co. Ltd v Electrolytic Alkali Co.Ltd
(1913) 3 K.B 422 at 425). All facts which tend to prove the fact in issue will be relevant at the trial, but they
are not material facts for pleading purposes. It is an elementary rule in pleading that, when a statement of
facts is relied on, 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.

It is wrong to set out in the pleading admissions made by the opponent. Whenever any contract or any relation
between any persons is to implied from a series of letters or conversations or otherwise from a number of
circumstances, the proper practice is to allege such contract or relation as a fact and it is only necessary to
set out the letters, conversations or circumstances generally and not in detail.

It is not always easy to draw the line between facts and evidence (see Davy v Garret (1878) 7 Ch.D 473;
Philips v Philips (1878) 4 Q.B.D 127; Re Dependable Upholstery Ltd (1936) 3 All E.R 741. 22

Facts must be material

20 Order 18/7/7 of the RSC

21 Order 18/7/8 of the RSC
22 Order 18/7/9 of the RSC

46
The words “contain only” emphasise that only facts which are material should be stated in a pleading.
Accordingly statements of immaterial and unnecessary facts may be struck out: Davy v Garret (1878) 7 Ch.D
473; Rassam v Budge (1893) 1 Q.B.571. The question whether a particular fact is or is not material depends
mainly on the special circumstances of the particular case. Thus knowledge, notice, intention and, in a few
cases, motive, are in some cases material, and if so, must be pleaded as facts with proper particularity. The
legal relation in which parties stand to one another should generally be stated.23
All material facts
It is essential that a pleading, if it is not to be embarrassing, should state those facts which will put those
against whom it is directed on their guard, and tell them what is the case which they will have to meet (Per
cotton Philips v Philips (1878) 4 Q.B.D 127, p. 139.) “Material means necessary for the purpose of formulating
a complete cause of action; and if any one material statement is omitted, the statement of claim is bad. Each
party must plead all the material facts on which he means to rely at the trial; otherwise he is not entitled to
give any evidence of them at the trial. No averment must be omitted which is essential to success. Those
facts must be alleged which must, not may, amount to a cause of action. (West Rand Co. v Rex (1905) 2
K.B 399. Where the evidence at trial establishes that facts different from those pleaded e.g by the plaintiff as
constituting negligence, which are not just a variation, modification or development of what has been alleged
but which constitute a radical departure from the case as pleaded, the action will be dismissed. Moreover, if
the plaintiff succeeds on findings of fact not pleaded by him, the judgment will not be allowed to stand.
Similarly, a defendant may be prevented from relying at trial on a ground of defence not pleaded by him
(Davie v New Merton Board Mills Ltd (1956) 1 All E.R 379).24

Facts which are not yet material

A pleader should never allege any fact which is not material at the present stage of the action even though
he may reasonably suppose that it may become material hereafter, for instance, the plaintiff need not aver
that a condition precedent has been performed; it is for the defendant to assert that it has not. The facts
relating to an acknowledgment sufficient to take the case out of the limitation Act may and should ordinarily
be pleaded in the statement of claim (Busch v Stevens (1962) 1 All E.R 412). So too, it is quite unnecessary
for the defendant to defend himself against charges which are not yet made or to plead to causes of action

23 Order 18/7/10 of the RSC

24 Order 18/7/11 of the RSC

47
which do not appear in the statement of claim Rassam v Budge (1893) 1 Q.B.571). Neither party need, in
any pleading, allege any matter of fact as to which the burden of proof lies on the other side. 25

Documents and Conversations

(1) The general rule is that only the gist is to be pleaded, however if the precise words of a document or
conversation are themselves material, they must be set out in full in the pleading. In an action for
libel, the precise words of the offending document are always material. In some cases, the precise
words of a clause in a will or other document may be material. (Darbishire v Leigh (1896) 1 Q.B 558
at 559). If a document is referred to in a pleading but neither its effect stated nor its precise words
set out, it cannot be read without consent on a summons or motion for judgment or on a motion to
strike out a statement of claim as not disclosing any reasonable cause of action (Williamson v L &
N.W Ry (1879) 12 Ch.D 787 and Smith v Buchan (1888) 36 W.R 631).26
(2) In the case of Mazoka and others v Mwanawasa and others (2005) Z.R 135 the Supreme court stated
that the function of pleadings is to give fair notice of the case which has to be met and to define the
issues on which the court will have to adjudicate in order to determine the matters in dispute between
the parties. The court further held that once the pleadings have been closed, the parties are bound
by their pleadings and the court has to take them as such.
(3) In Lyons Brooke Bond (Z) Limited v Zambia Tanzania Road Services Limited (1977) Z.R 317 the
Supreme Court further held that the function of pleadings is to assist the court by defining the bounds
of the action, which cannot be extended without leave of the court and consequential amendment of
the pleadings.
(4) However in the case of In the case of Chilanga Cement Plc v F.G Ali Transport Limited and Others
(2008) Z.R 168, the Supreme Court held that where a defence not pleaded is let in by the evidence
and not objected to by the other side, the court is not precluded from considering it.

MATTERS WHICH MUST BE SPECIFICALLY PLEADED

A party must in any pleading subsequent to a statement of claim, plead specifically any matter for example,
performance, release, the expiry of any relevant period of limitation, fraud or any fact showing illegality- Which

25 Order 18/7/17 of the RSC

26 Order 18/7/18 of the RSC

48
he alleges makes any claim or defence of the opposite party not maintainable; or Which if not specifically
pleaded might take the opposite party by surprise; or Which raises issues of fact not arising out of the
preceding pleading.

Without prejudice to paragraph (1) a defendant to an action for possession of land must plead specifically
every ground of defence on which he relies and a plea that he is in possession of the land by himself or his
tenant is not sufficient.

A claim for exemplary damages or for provisional damages must be specifically pleaded together with the
facts on which the party pleading relies.27

The following explanatory notes further explain Order 18 rule 8 of the RSC in detail.

Confess and avoid

It often not enough for a party to deny an allegation in his opponent’s pleading, he must go further and dispute
its validity in law, or set up some affirmative case of his own in answer to it. It will not serve his turn merely
to traverse the allegation, he must confess and avoid it. Thus, if the Plaintiff sets up a contract which was in
fact made, it will be idle for the defendant to merely traverse (i.e deny) the making of the contract; he should
confess (i.e admit) that he made the contract but avoid the effect of that confession by pleading the Statute
of Frauds or Limitation Act or setting up that the contract has been duly performed or rescinded. 28

A defendant, however is not bound to admit an allegation which he thus seeks to avoid, or which he alleges
to be bad in law. He may at the same time deny its truth, so long as he makes it quite clear how much he is
denying. He may indeed take all three courses at once, the same allegation may be traversed in point of fact,
and objected to as bad in law, and at the same time collateral matter may be pleaded to destroy its effect.
Any number of defences may now be pleaded together in the same defence, although they are obviously
inconsistent. A defendant may raise by his defence, without leave, as many distinct and separate and
therefore inconsistent defences as he might think proper- subject only to this, that embarrassing defences
may be struck out.29

27 Order 18 rule 8 of the RSC

28 Order 18/8/3 of the RSC
29 Ibid

49
But all these various defences must be clearly and distinctly pleaded and the facts upon which each is
grounded should be stated separately. As a rule, each answer to the action should be pleaded in separate
paragraph. The defendant must make it quite clear what line of defence he is adopting. Special defences of
this kind must not be mixed up with traverses or insinuated into pleas which deny the facts alleged by the
Plaintiff. The office of a traverse is to contradict, not to excuse or justify the act complained of; its object is to
compel the Plaintiff to prove the truth of the allegation traversed, not to dispute its sufficiency in point of law.
All matter justifying or excusing the act complained of must be pleaded specifically and separately. So must
all matters which go to show that the contract sued on is illegal or invalid, or which if not expressly stated,
might take the opposite party by surprise, or would raise issues of fact not arising out of the preceding
pleading. And no evidence of such matters can, as a rule, be given at the trial if they are not expressly
pleaded.30

Statute of frauds must be specifically pleaded, if the defendant desires to rely on it. Even where the Plaintiff’s
counsel has clearly had the statute of frauds in his mind and pleaded with a view to it, alleging facts to take
the case out of its operation as e.g part performance, still the defendant cannot raise the point unless the
statute has been pleaded. But where the statute is pleaded generally, the defendant cannot rely on it as a
defence on the ground that the term of the agreement was omitted from the memorandum, where this
obligation is not raised by the defence.31

From the foregoing it is clear that any pleading subsequent to a statement of claim must specifically plead
certain matters. These include (i) Performance (ii) release, (iii) the expiry of any relevant period of limitation,
(iv) fraud, (v) any fact showing illegality e.t.c

In the case of Clement Mweempe v The Attorney General and others (2012) Vol 2 Z.R 155 the court stated
at page 168 and 169 that:

There are some matters which the defendant must specifically plead in his defence if he intends to
rely thereon. Order 18 rule 8 (c) of the Rules of the Supreme Court of England provides that a party

30 ibid
31 Order 18/8/40 of the RSC

50
must, in any pleading subsequent to a statement of claim, plead specifically any matter which raises
issues of fact not arising out of the proceeding pleading. This rule specifically enforces one of the
cardinal principles of the present system of pleading viz, that every defence must plead specifically
any matter which makes the claim not maintainable. A defendant may raise, by his defence, as many
distinct and separate and therefore, inconsistent defences as he may think proper. But all these
defences must be clearly and distinctly pleaded and the facts upon which one is grounded should be
stated separately ; no evidence of such matters can as a rule , be given at the trial if not expressly
pleaded, as observed in Davies v New Merton Board Mills Limited.

POINTS OF LAW MAY BE PLEADED

If a party intends to raise a point of law on the facts as pleaded, it is a convenient course to do so in the
pleading. But nevertheless he may, at the trial, raise a point of law open to him even though not pleaded
(Independent Automatic Sales Ltd v. Knowles & Foster [1962] 3 All E.R. 27). In a proper case, the Court will
allow a party to amend his pleading so as to raise a point of law for argument before the trial or allow a
preliminary point of law to be argued under O.33, r.3, without any pleadings. 32

Where all the allegations in the statement of claim are admitted, but an objection in point of law is raised in
the defence, no evidence will be admitted at the trial, since there is no issue of fact on the pleadings (Pioneer
Plastic Containers Ltd v. Commissioner of Customs & Excise [1967] Ch. 597).33

The Court is not justified, under this rule, even with the consent of the parties, in deciding abstract questions
of law raised by the pleadings. Its function is "to decide questions of law when arising between the parties as
the result of a certain state of facts.”34

The Court in the case of Damalas Mwansa v Ndola Lime Company Limited (2012) Vol. 3 Z.R 268 held that if
a party intends to raise a point of law on the facts as pleaded, it is a convenient course to do so in the
pleadings. This course of action is desirable as it would ensure that issues in dispute are defined at the

32 Order 18/11/1 of the RSC

33 Ibid
34 ibid

51
earliest opportunity and might even have the effect of avoiding a trial. Notwithstanding, a party may at trial
raise a point of law open to him, even though it was not pleaded in his defence.

52
 PARTICULARS OF PLEADING

Every pleading must contain the necessary particulars of any claim, defence or other matter pleaded
including, without prejudice to the generality of the foregoing,
i. Particulars of any misrepresentation, fraud, breach of trust, wilful default or undue influence on which
the party pleading relies;
ii. Where a party pleading alleges any condition of the mind of any person, whether any disorder or
disability of mind or any malice, fraudulent intention or other condition of mind except knowledge,
particulars of the facts on which the party relies; and
iii. Where a claim for damages is made against a party pleading, particulars of any facts on which the
party relies in mitigation of, or otherwise in relation to, the amount of damages.
Where it is necessary to give particulars of debt, expenses or damages and those particulars exceed three
folios, they must be set out in a separate document referred to in the pleading and the pleading must state
whether the document has already been served and, if so, when, or is to be served with the pleading.

The Court may order a party to serve on any other party particulars of any claim, defence or other matter
stated in his pleading, or in any affidavit of his ordered to stand as a pleading, or a statement of the nature of
the case on which he relies, and the order may be made on such terms as the Court thinks just.

Where a party alleges as a fact that a person had knowledge or notice of some fact, matter or thing, then,
without prejudice to the generality of paragraph (3), the Court may, on such terms as it thinks just, order that
party to serve on any other party -

i. where he alleges knowledge, particulars of the facts on which he relies, and

ii. where he alleges notice, particulars of the notice.
An order under this rule shall not be made before service of the defence unless, in the opinion of the Court,
the order is necessary or desirable to enable the defendant to plead or for some other special reason.

Where the applicant for an order under this rule did not apply by letter for the particulars he requires, the
Court may refuse to make the order unless of opinion that there were sufficient reasons for an application by
letter not having been made.

53
Where particulars are given pursuant to a request or order of the Court, the request or order shall be
incorporated with the particulars, each item of the particulars following immediately after the corresponding
item of the request or order.35

The requirement to give particulars reflects the overriding principle that the litigation between the parties, and
particularly the trial, should be conducted fairly, openly, without surprises and, as far as possible, so as to
minimise costs. The function of particulars is accordingly:

(1) to inform the other side of the nature of the case that they have to meet as distinguished from the
mode in which that case is to be proved (per Lindley L.J. in Duke v. Wisden (1897) 77 L.T. 67 at 68,
Aga Khan v. Times Publishing Co. [1924] 1 K.B. 675 at 679);
(2) to prevent the other side from being taken by surprise at the trial (per Cotton L.J., in Spedding v.
Fitzpatrick (1888) 38 Ch.D. 410 at 413; Thomson v. Birkley (1882) 31 W.R. 230);

(3) to enable the other side to know with what evidence they ought to be prepared and to prepare for
trial (per Cotton L.J. ibid.; per Jessel M.R. in Thorp v. Holdsworth (1876) 3 Ch.D. 637 at 639;
Elkington v. London Association for the Protection of Trade (1911) 27 T.L.R. 329 at 330);

(4) to limit the generality of the pleadings (per Thesiger L.J. Saunders v. Jones (1877) 7 Ch.D. 435) or
of the claim or the evidence (Milbank v. Milbank [1900] 1 Ch. 376 at p.385);

(5) to limit and define the issues to be tried, and as to which discovery is required (Yorkshire Provident
Life Assurance Co. v. Gilbert [1895] 2 Q.B. 148, per Vaughan Williams L.J. in Milbank v. Milbank
[1900] 1 Ch. 376 at 385);

(6) to tie the hands of the party so that he cannot without leave go into any matters not included (per
Brett L.J. in Philipps v. Philipps (1878) 4 Q.B.D. 127 and Woolley v. Broad [1892] 2 Q.B. 317). But if
the opponent omits to ask for particulars, evidence may be given which supports any material
allegation in the pleadings.36

35 Order 18 rule 12 of the RSC

36 Order 18 /12/2 of the RSC

54
It is not the function of particulars to take the place of necessary averments in the pleading, nor "to state the
material facts omitted...by filling the gaps or to make good an inherently bad pleading" (per Scott L.J. in
Pinson v. Lloyds, etc., Bank [1941] 2 K.B. 72 at 75).The purpose of pleadings is not to play a game at the
expense of the litigants but to enable the opposing party to know the case against him. 37

Whenever either party is imputing fraud, negligence, or misconduct to his opponent, the facts must be stated
with special particularity and care. Thus, in an action of wrongful dismissal, a plea justifying the dismissal on
the ground that the servant was incompetent or dishonest must state the charge specifically and in detail; so
must a plea justifying the publication of defamatory words on the ground that they are true; so must all charges
of bad workmanship, want of skill, negligence, and contributory negligence. The Court will require of him who
makes a charge that he shall state that charge with as much definiteness and particularity as may be done,
both as regards time and place. 38

In the case of Kariba North Bank Company Limited v Zambia State Insurance Corporation Limited(1980) Z.R
94, the Court gave the following exposition as regards particulars: “The most vital functions of particulars
are (1) to inform the other side of the case they have to meet; (2) to prevent the other side being taken
by surprise; (3) to enable the other side to know what evidence they ought to be prepared with and
to prepare trial;(4) to limit the generality of the pleading or of the claim or the evidence; (5) to limit
and define the issues to be tried and as to which discovery is required and (6) to tie the hands of the
party so that he cannot without leave go into any matter not fairly included therein.”39

37
Ibid
38 Ibid
39 page 99

55
 ADMISSIONS AND DENIALS
(1) Any allegation of fact made by a party in his pleading is deemed to be admitted by the opposite party
unless it is traversed by that party in his pleading or a joinder of issue operates as a denial of it.

(2) A traverse may be made either by a denial or by a statement of non-admission and either expressly or by
necessary implication.

(3) Every allegation of fact made in a statement of claim or counterclaim which the party on whom it is served
does not intend to admit must be specifically traversed by him in his defence or defence to counterclaim, as
the case may be; and a general denial of such allegations, or a general statement of non-admission of them,
is not a sufficient traverse of them.40

This is intended to bring the parties by their pleadings to an issue, and indeed to narrow them down to definite
issues, and so diminish expense and delay, especially as regards the amount of testimony required on either
side at the hearing (per Jessel M.R. in Thorp v. Holdsworth (1876) 3 Ch.D. 637). This object is secured by
requiring that each party in turn should fully admit or clearly deny every material allegation made against him.
Thus, in an action for a debt or liquidated demand in money, a mere denial of the debt is wholly inadmissible. 41

Express Admissions
Parties ought properly to admit facts as to which there is really no controversy. A defendant ought not to deny
plain and acknowledged facts which it is neither to his interest nor in his power to disprove. 42

If sufficient admissions be made by a defendant, the plaintiff may apply (but he is not bound to do so) for
judgment and notwithstanding that he has joined issue on the defence and set the action down for trial (Rutter
v. Tregent (1879) 12 Ch.D. 758; Brown v. Pearson (1882) 21 Ch.D. 716; Smith v. Davies (1884) 28 Ch.D.
650; (1886) 31 Ch.D. 595); but in the latter case, the defendant should be indemnified against any costs
incurred by him owing to the plaintiff's delay. 43

40 Order 18 rule 13 of the RSC

41 Order 18/13/3 of the RSC
42 Order 18/13/4 of the RSC
43 Ibid

56
The effect of the defendant admitting the facts pleaded in the statement of claim is that there is no issue
between the parties on that part of the case which is concerned with those matters of fact, and, therefore, no
evidence is admissible in reference to those facts (Pioneer Plastic Containers Ltd v. Commissioner of
Customs and Excise [1967] Ch. 597; [1967] 1 All E.R. 1053).44

Traverse by denial or non-admission

A traverse may be made either by a denial or non-admission, and either expressly or by necessary
implication. A refusal to admit must be stated as specifically as a denial. "Defendant puts plaintiff to proof",
has been held to be insufficient denial (Harris v. Gamble (1878) 7 Ch.D. 877). "Defendants do not admit
correctness", has been held to be an insufficient denial (Rutter v. Tregent (1879) 12 Ch.D. 758). It has been
said that there is no difference in effect between denying and not admitting an allegation. 45

Traverse must be specific, not general

Every allegation of fact must be specifically denied or specifically not admitted. What is apparently one
allegation may in reality amount to two or more. Thus an allegation "that the defendant broke into and entered
the plaintiff's field" contains two allegations: (1) that the field is the plaintiff's and (2) that the defendant
entered it. If the defendant desires to deny both allegations, he must do so separately. 46

The rule applies only to allegations of fact and matters of law should not be traversed. The defendant should
never traverse matters which the plaintiff might have, but has not, raised against him (see Rassam v. Budge
[1893] 1 Q.B. 571). Moreover, it is not part of his duty, when drafting his defence, to anticipate what the
plaintiff may hereafter allege in his reply.47

A general denial or a general statement of non-admission, of allegations of facts is not a sufficient traverse
thereon. Nowadays, almost every pleading on behalf of a defendant ends with a general traverse, e.g. "save
as hereinbefore specifically admitted, the defendant denies each and every allegation contained in the
statement of claim as though the same were herein set out and traversed seriatim" (see per Lord Denning in
Warner v. Sampson [1959] 1 Q.B. 297 at 310-11). In dealing with a long and complicated statement of claim

44 Ibid
45 Order 18/13/5 of the RSC
46 Order 18/13/6 of the RSC
47 Ibid

57
or counterclaim, and especially with allegations which are more or less immaterial, this practice is often
convenient. It should not, however, be adopted in dealing with the essential allegations. So far as concerns
the allegations which are the gist of the action the denial should be as precise as possible, e.g., "The
defendant never spoke or published the said words or any of them.”48

DENIAL BY JOINDER OF ISSUE

(1) If there is no reply to a defence, there is an implied joinder of issue on that defence.
(2)Subject to paragraph (3) -
(a) there is at the close of pleadings an implied joinder of issue on the pleading last served, and
(b) a party may in his pleading expressly join issue on the next preceding pleading.
(3) There can be no joinder of issue, implied or express, on a statement of claim or counterclaim.
(4)A joinder of issue operates as a denial of every material allegation of fact made in the pleading on which
there is an implied or express joinder of issue unless, in the case of an express joinder of issue, any such
allegation is excepted from the joinder and is stated to be admitted, in which case the express joinder of issue
operates as a denial of every other such allegation.49

Thus, if no defence is served in answer to the statement of claim or no defence to counterclaim is served in
answer to the counterclaim, there are no issues between the parties; the allegations of fact made in the
statement of claim or counterclaim are deemed to be admitted and the plaintiff or defendant, as the case may
be, may enter, or apply for, judgment in default of pleading. On the other hand, if no reply is served in answer
to a defence, the allegations of fact in the defence are deemed to be denied. 50

A joinder of issue operates as a series of denials of all the relevant facts alleged in the preceding pleading,
except in respect of any allegation which is expressly admitted. After a joinder of issue takes effect, therefore,
the pleadings will show which facts are admitted, expressly or impliedly, and which are in issue between the
parties.51

STATEMENT OF CLAIM

48 Ibid
49 Order 18 rule 14 of the RSC
50 Order 18 /14/1 of the RSC
51 Ibid

58
(1) A statement of claim must state specifically the relief or remedy which the plaintiff claims; but costs need
not be specifically claimed.

(2) A statement of claim shall not contain any allegation or claim in respect of a cause of action unless that
cause of action is mentioned in the writ or arises from facts which are the same as, or include or form part of,
facts giving rise to a cause of action so mentioned; but, subject to that, a plaintiff may in his statement of
claim alter, modify or extend any claim made by him in the indorsement of the writ without amending the
indorsement.52

DEFENCE OF TENDER
Where in any action a defence of tender before action is pleaded, the defendant must pay into Court the
amount alleged to have been tendered, and the tender shall not be available as a defence unless and until
payment into Court has been made.53

If the defendant desires to rely upon the defence of tender before action, he must (a) plead the fact of tender
before action, state the fact of payment in and the amount in the defence; (b) pay the money into Court, with
his defence; and (c) give notice to the plaintiff of the payment in. The defence of tender is excepted from the
rule that the payment into Court must not be pleaded or disclosed to the trial Judge until all questions of
liability and damages have been decided.54

The defence of tender is a defence at common law and only applies to a liquidated claim. It is a good defence
to an action to recover a debt. It cannot be pleaded as a defence to a claim for unliquidated damages, even
though that claim should be quantified, but it is not invalidated because the amount paid into Court under this
rule exceeds the amount tendered, nor because the amount tendered and subsequently paid into Court does
not include interest, unless it be in respect of a debt bearing contractual or statutory interest (John Laing
Construction Ltd v. Dastur [1987] 1 W.L.R. 686, [1987] 3 All E.R. 247, CA, applied in Smith v. Springer [1987]
1 W.L.R. 1720, [1987] 3 All E.R. 252, CA).55

52 Order 18 rule 15 of the RSC

53 Order 18 rule 16 of the RSC
54 Ibid
55 Ibid

59
If made before the writ is issued, a tender is good although, before the tender, the creditor had employed a
solicitor to sue the debtor, and the solicitor had written a letter to the debtor demanding payment. 56

DEFENCE OR SET – OFF

Where a claim by a defendant to a sum of money (whether of an ascertained amount or not) is relied on as
a defence to the whole or part of a claim made by the plaintiff, it may be included in the defence and set-off
against the plaintiff's claim, whether or not it is also added as a counterclaim. 57

Nature of set-off
A set-off is a monetary cross-claim which is also a defence to the claim made in the action. The defendant
has a right to plead a set-off (instead of maintaining a separate action).58

Same parties, in same right

Set-off was only available in respect of debts or liquidated demands due between the same parties in the
same right. So, against a claim by the plaintiff as executor or trustee, the defendant cannot set-off a debt due
to him from the plaintiff personally and, conversely, to a claim against the defendant as executor, the latter
cannot set-off a debt due to him personally nor to a claim against an executor personally a debt due to him
as executor. Nor, against a claim by the plaintiff, can a debt due from his agent personally be set-off, unless
the plaintiff authorised or allowed the agent to contract as principal.59

Debt and damages

The equitable right of set-off applies in all Courts, and can be set up by way of defence instead of merely
grounding a claim for an injunction. So, for the purposes of set-off, debt and damages have apparently been
put on the same footing, provided that, in the case of damages, the latter arise out of the same transaction
as the cross-claim (Morgan & Sons v. S. Martin Johnson & Co. [1949] 1 K.B. 107, CA; Hanak v. Green [1958]
2 Q.B. 9; [1958] 2 All E.R. 141, CA; and see M'Creagh v. Judd [1923] W.N. 174; Bankes v. Jarvis [1903] 1

56 Ibid
57 Order 18 rule 17of the RSC
58 Order 18/17/2 of the RSC
59 Order 18/17/3 of the RSC

60
K.B. 549, per Channel J.). The right to set off a sum of money, whether the amount is ascertained or not, is
now expressly recognised by this rule.60

Accruals of set-off
The sum set-off must have accrued due at the commencement of the action (Richards v. James (1848) 2 Ex.
471) and all proper defences may be set up in reply. A claim by way of a set-off or counter-claim is to be
deemed to be a separate action and to have been commenced on the same date as the original action. 61 In
the Maheshkumar Somabhai Patel and another v Freeze – o – Matic Limited and another SCZ Judgment
No.3 of 2017, the Supreme Court held that a claim by way of set off or counterclaim is deemed to be a
separate action and to have been commenced on the same date as the original action.

COUNTERCLAIM AND DEFENCE TO COUNTERCLAIM

A counter-claim stands in the same place as a statement of claim, and the defence to counterclaim with a
defence. A counterclaim is therefore governed by the same rules of pleading as a statement of claim, and
the defence to counterclaim by the same rules as a defence.62

All the facts relied on by way of counterclaim must be stated in numbered paragraphs under the heading
"Counterclaim", so as to distinguish them from the facts alleged by way of defence. If any of the facts on
which the counterclaim is founded have been already stated in the defence, they need not be restated in the
counterclaim, but may be incorporated by reference. A counterclaim may comprise several distinct causes
of action. But in that case the facts on which each cause of action is founded must be stated, as far as may
be, separately and distinctly and the relief or remedy prayed stated specifically, either simply or in the
alternative. And the several causes of action must be such as could properly be joined in one independent
action (Compton v. Preston (1822) 21 Ch.D. 138). But to a claim for the recovery of land, the defendant may
counterclaim for relief against forfeiture and to a claim for damages for infringing a patent, the defendant may
counterclaim for the revocation of the plaintiff's patent (Patents Act 1977, s.72).63

60 Order 18/17/5 of the RSC

61 Order 18/17/7 of the RSC
62 Order 18/18/2 of the RSC
63 Ibid

61
Similarly, with the defence to counterclaim, every ground of defence relied on must be specifically pleaded
and so must the defence of tender, or the defence of set-off and every allegation of fact in the counterclaim
which the plaintiff does not intend to admit must be specifically traversed by him in his defence to
counterclaim, otherwise he will be deemed to admit the same. For the purposes of the Limitation Act, a
counterclaim is a new claim and is deemed to be a separate action and to have been commenced on the
same date as the original action.64

STRIKING OUT PLEADINGS AND INDORSEMENTS

4. (1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or
the indorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground
that -
(a) It discloses no reasonable cause of action or defence, as the case may be; or
(b) it is scandalous, frivolous or vexatious; or
(c) it may prejudice, embarrass or delay the fair trial of the action; or
(d) it is otherwise an abuse of the process of the Court; and may order the action to be stayed or
dismissed or judgment to be entered accordingly, as the case may be.
(2) No evidence shall be admissible on an application under paragraph (1) (a).
(3) This rule shall, so far as applicable, apply to an originating summons and a petition as if the summons
or petition, as the case may be, were a pleading.65

APPLICATION
Although the rule expressly states that the order may be made "at any stage of the proceedings", still the
application should always be made promptly, and as a rule before the close of pleadings. Where the
statement of claim is being attacked, the application may be made before the defence is served; but where
it is sought to stay or dismiss the action, the application should not be made before the service of the
statement of claim. Where the defence or other subsequent pleading is being attacked, the application should
be made as soon as practicable after the service of such defence or pleading. The application may be made
even after the pleadings are closed or the trial set down. Though it should not be heard at the opening of the
trial, save in exceptional circumstances (Halliday v. Shoesmith [1993] 1 W.L.R. 1, CA). 66

64 Ibid
65 Order 18 rule 19 of the RSC
66 Order 18/19/3 of the RSC

62
Thus a pleading which (i) discloses no reasonable cause of action or defence, (ii) is scandalous, frivolous or
vexatious (iii) may prejudice, embarrass or delay the fair trial of the action or (iv) is an abuse of the process
of the Court ought to be struck out.

NO REASONABLE CAUSE OF ACTION OR DEFENCE

(1) Principles - A reasonable cause of action means a cause of action with some chance of success when
only the allegations in the pleading are considered (per Lord Pearson in Drummond-Jackson v. British
Medical Association [1970] 1 W.L.R. 688; [1970] 1 All E.R. 1094, CA). So long as the statement of claim or
the particulars (Davey v. Bentinck [1893] 1 Q.B. 185) disclose some cause of action, or raise some question
fit to be decided by a Judge or a jury, the mere fact that the case is weak, and not likely to succeed, is no
ground for striking it out (Moore v. Lawson (1915) 31 T.L.R. 418, CA; Wenlock v. Moloney [1965]1 W.L.R.
1238; [1965] 2 All E.R. 871, CA); nor is the fact that the Statute of Frauds 1677 (which was merely a provision
as to evidence) might be a bar to the claim (Fraser v. Pape (1904) 91 L.T. 340, CA). In such a case application
may be made for the trial of a preliminary issue (see, e.g. Addis v. Crocker [1961] 1 Q.B. 11; [1960] 2 All E.R.
629, CA affirming [1960] 1 Q.B. 87; [1959] 3 All E.R. 773).67

court can hear a striking out application which contained non compliance with the rules of pleading and which
was not based on the merits or on the facts of the case (Morris v. Mahfouz (No. 3) (1994) The Times, May
5, Ch D.68

Thus a statement of claim must disclose a reasonable cause of action and if it does not, the Court will strike
out the matter. In the case of Wise v E.F. Hervey (1985) Z.R 179 the Court held that: A cause of action is
disclosed only when a factual situation is alleged which contains acts upon which a party can attach
liability to the other or upon which he can establish a right or entitlement to a judgment in his favour
against the other.”

Further, In Corburn v Colledge (1897) 1 Q.B. 702 Lord Esher M.R stated that: “If the Plaintiff alleges facts
which if not traversed would prima facie entitle him to recover, then he makes out a cause of action.”

67 Order 18/19/10 of the RSC

68 Ibid

63
Want of particularity
Where a pleading is defective only in not containing particulars to which the other side is entitled, application
should be made for particulars and not for an order to strike out the pleading under this rule. Even a serious
want of particularity in a pleading may not justify striking-out if (1) the defect can be remedied, and (2) the
defect is not the result of a blatant disregard of court-orders (British Airways Pension Trustees Ltd v. Sir
Robert McAlpine 72 B.L.R. 26, CA)69

CLOSE OF PLEADINGS
(1)The pleadings in an action are deemed to be closed -
(a) at the expiration of 14 days after service of the reply or, if there is no reply but only a defence to
counterclaim, after service of the defence to counterclaim, or
(b) if neither a reply nor a defence to counterclaim is served, at the expiration of 14 days after service of
the defence.
(2)The pleadings in an action are deemed to be closed at the time provided by paragraph (1)
notwithstanding that any request or order for particulars has been made but has not been complied with
at that time.70

69
Order 18/19/10 of the RSC
70 Order 18 rule 20 of the RSC

64
 AMENDMENT

AMENDMENT OF WRIT WITHOUT LEAVE

The plaintiff may, without the leave of the Court, amend the writ once at any time before the pleadings in the
action begun by the writ are deemed to be closed.71 Where a writ is amended after service thereof, then
unless the Court otherwise directs on an application made ex parte, the amended writ must be served on
each defendant to the action.72

However, a Writ shall not be amended without leave in relation to an amendment which consists of:
(a) the addition, omission or substitution of a party to the action or an alteration of the capacity in which a
party to the action sues or is sued; or
(b) the addition or substitution of a new cause of action; or
(c) an amendment of the statement of claim indorsed on the writ, unless the amendment is made before
service of the writ on any party to the action.73

A writ can therefore be amended without leave of court both before and after service provided the pleadings
have not closed and the amendment does not consist of the items listed in 2.2 above.

Amendment of Writ before service

A writ may be amended without leave before it has been served on any party to the action. There is no longer
any need to apply ex parte to the Court to amend the writ before service, whatever may be the amendment
sought to be made, whether it consists in altering the name of the parties or their addresses, or the amount
of the claim or the addition of a new cause of action or otherwise, and whether or not the writ is indorsed with
a statement of claim. This, however, is subject to the power of the Court to disallow an amendment of the
writ which has been made without leave before service just as in the case of an amendment of a pleading
made without leave before the close of pleadings. An amendment of the writ before service can be made
only once without leave; any further amendment requires the leave of the Court and an application should be
made to the Deputy Registrar without an affidavit unless he requires an affidavit. 74

71 Order 20 rule 1 (1) of the RSC

72 Order 20 rule 1 (2) of the RSC
73 Order 20 rule 1 (3) of the RSC
74 Order 20/1/2 of the RSC

65
Amendment of Writ after service
The plaintiff may, without leave, amend his writ once at any time before the close of pleadings so that the
plaintiff may amend his writ whether before or after service of the writ. This rule applies only to a writ, and
not to a statement of claim if it be indorsed on the writ but the statement of claim may itself be amended
without leave as will be shown later.75

This applies only to amendments the object of which is to correct mere or accidental mistakes, errors, slips
or omissions. Thus, where a date or a figure has been wrongly stated or the name of a party has been wrongly
spelt, or a Christian name requires to be altered or a description such as "male" or "married woman" to be
added or altered, provided in all such cases that the identity of the party is the same, or generally where the
amendment is merely formal in character or in its effect, the amendment may be made without leave. 76

AMENDMENT OF PLEADINGS WITHOUT LEAVE

(1) A party may, without the leave of the Court, amend any pleading of his once at any time before the
pleadings are deemed to be closed and, where he does so, he must serve the amended pleading on the
opposite party.

(2) Where an amended statement of claim is served on a defendant -

(a) the defendant, if he has already served a defence on the plaintiff, may amend his defence, and
(b) the period for service of his defence or amended defence, as the case may be, shall be the period fixed
for service of his defence.
(3)Where an amended defence is served on the plaintiff by a defendant -
(a) the plaintiff, if he has already served a reply on that defendant, may amend his reply, and
(b) the period for service of his reply or amended reply, as the case may be, shall be the period set in the
order for directions for trial.
(4)In paragraphs (2) and (3) references to a defence and a reply include references to a counterclaim and a
defence to counterclaim respectively.77

75 Order 20/1/3 of the RSC

76 Order 20/1/3 of the RSC
77 Order 20 rule 3 of the RSC

66
AMENDMENT OF WRIT OR PLEADINGS WITH LEAVE
The Court or a Judge may, at any stage of the proceedings, order any proceedings to be amended, whether
the defect or error be that of the party applying to amend or not; and all such amendments as may be
necessary or proper for the purpose of eliminating all statements which may tend to prejudice, embarrass or
delay the fair trial of the suit, and for the purpose of determining, in the existing suit, the real question or
questions in controversy between the parties, shall be so made. Every such order shall be made upon such
terms as to costs or otherwise as shall seem just.78

In the case of Investrust Bank Plc v Chick Masters Limited and Dr Mwilala Imakando 2011 Z.R 58 the Court
stated that; As a general rule, however late the amendment is sought to be made, it should be allowed
if it will not do the opponent party some injury or prejudice him in some way that cannot be
compensated by costs.79

Effect of amendment
An amendment duly made, with or without leave, takes effect, not from the date when the amendment is
made, but from the date of the original document which it amends; and this rule applies to every successive
amendment of whatever nature and at whatever stage the amendment is made. Thus, when an amendment
is made to the writ, the amendment dates back to the date of the original issue of the writ and the action
continues as though the amendment had been inserted from the beginning: "the writ as amended becomes
the origin of the action, and the claim thereon indorsed is substituted for the claim originally indorsed" (per
Collins M.R. in Sneade v. Wotherton, etc. [1904] 1 K.B. 295 at 297).80

Similarly "once pleadings are amended, what stood before amendment is no longer material before the Court
and no longer defines the issues to be tried" (per Hodson L.J. in Warner v. Sampson [1959] 1 Q.B. 297 at
321). The fact that the pleading has been amended will not affect the incidence of subsequent costs, even
though the action is decided on the point raised by the amendment. (Nottage v. Jackson (1883) 11 Q.B.D.
627, CA). An amendment to correct the name of a party relates back to date of the issue of the writ, even

78 Order 18 of the High Court Rules, Chapter 27 of the Laws of Zambia.

79 Ibid at page 65
80 20/8/2 of the RSC

67
after the expiry of the limitation period. (Katzenstein Adler Industries (1975) Ltd v. Borchard Lines Ltd (1988)
138 New L.J. 94).81

Application to amend
In all cases except where leave to amend is allowed without leave or by consent, the party seeking or
requiring amendment of any pleading or document must apply for leave or order to amend.
(a) If the application is before the trial, it should be made by summons before the Deputy Registrar.
(b) Leave to amend during the trial can only be given by the Judge who tries the action. After the trial,
the application should if possible be made to the Judge who tried the action. 82

It is desirable to specify the intended amendments (see Lawrance v. Lord Norreys (1890) 39 Ch.D. 213 at
217; Derrick v. Williams (1939) 55 T.L.R. 676) either by stating them (if short) in the body of the summons or
notice, or by referring to them, e.g. "as set forth in red ink in the pleading annexed" or "copy documents
served herewith". An affidavit is not required, as a rule, except in cases of amendment of a writ issued for
service out of the jurisdiction (see Holland v. Leslie [1894] 2 Q.B. 346 at 348 and 450.83

In practice, leave to amend is given only when and to the extent that the proposed amendments have been
properly and exactly formulated, see Hyams v. Stuart King [1908] 2 K.B. 696 at 724; J. Leavey & Co. v. Hirst
[1944] K.B. 24, per Lord Greene M.R. at 27. In such case the order giving leave to amend binds the party
making the application and he cannot amend generally. Sometimes, though rarely, leave may be given to
amend a pleading generally, but in such case the party is not entitled to introduce in his pleading amendments
which would not have been allowed if he had formulated and stated in writing the exact amendment that he
was seeking to make; to do so would be an abuse of process and accordingly the Court has power in a proper
case to strike out such amendments (Busch v. Stevens [1963] 1 Q.B. 1; [1962] 1 All E.R. 412).84

Leave or Order to Amend

81 Ibid
82 Order 20/8/4
83 Ibid
84
Ibid

68
The date of the order and the name of the Judge, or Deputy/District Registrar by whom the order is made
must be indorsed on the amended document as follows: "Amended pursuant to the order of Mr Justice
……….. [or Deputy Registrar] dated the………day of……..2018."85

Practice on Amendment
A first amendment should be in red, a second or re-amendment should be in green, a third amendment in
violet and a fourth amendment in yellow.86

General principles for grant of leave to amend

It is a guiding principle of cardinal importance on the question of amendment that, generally speaking, all
such amendments ought to be made "for the purpose of determining the real question in controversy between
the parties to any proceedings or of correcting any defect or error in any proceedings". 87

"It is a well-established principle that the object of the Court is to decide the rights of the parties, and not to
punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance
with their rights ... I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the
Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the
sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment
as a matter of favour or grace ... It seems to me that as soon as it appears that the way in which a party has
framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on
his part to have it corrected if it can be done without injustice, as anything else in the case is a matter of right"
(per Bowen L.J. in Cropper v. Smith (1883) 26 Ch.D. 700 at 710-711, with which observations A. L. Smith
L.J., expressed "emphatic agreement" in Shoe Machinery Co. v. Cultam [1896] 1 Ch. 108 at 112). 88

In Tildesley v. Harper (1878) 10 Ch.D. 393 at 396 and 397, Bramwell L.J. said: "My practice has always been
to give leave to amend unless I have been satisfied that the party applying was acting mala fide, or that, by
his blunder, he had done some injury to his opponent which could not be compensated for by costs or
otherwise." "However negligent or careless may have been the first omission, and however late the proposed

85 Order 20/8/5
86 Q.B. Master's Practice Direction No. 20
87 66 Order 20/8/6
88
Ibid

69
amendment, the amendment should be allowed if it can be made without injustice to the other side. There is
no injustice if the other side can be compensated by costs. Amendment ought to be allowed if thereby "the
real substantial question can be raised between the parties", and multiplicity of legal proceedings avoided
(Kurtz v. Spence (1888) 36 Ch.D. 774.89

In Zambia Consolidated Copper Mines v Joseph David Chileshe (2002) Z.R 86, the Court disallowed an
amendment made by the Respondent because the said amendment would be prejudicial to the appellant.
On the other hand, it should be remembered that there is a clear difference between allowing amendments
to clarify the issues in dispute and those that provide a distinct defence or claim to be raised for the first time
(see, per Lord Griffiths in Ketteman v. Hansel Properties Ltd [1987] A.C. 189 at 220). 90

AMENDMENT OF OTHER ORIGINATING PROCESS

Leave to amend will be given to enable the defendant to raise a defence arising from a change in the law
since the commencement of the proceedings affecting the rights of the parties or the relief or remedy claimed
by the plaintiff, even though this might lead to additional delay and expense and a much longer trial. 91

The court may also grant leave to amend an originating summons, a petition and notice of an originating
motion as if it were a Writ.92

AMENDMENT OF JUDGMENT AND ORDERS

For the purpose of determining the real question in controversy between the parties to any proceedings, or
of correcting any defect or error in any proceedings, the Court may at any stage of the proceedings and either
of its own motion or on the application of any party to the proceedings order any document in the proceedings
to be amended on such terms as to costs or otherwise as may be just and in such manner as it may direct.
This applies to a judgment or order.93

89
Ibid
90
Ibid
91
Ibid
92
Order 20 rule 7 of the RSC
93
Order 20 rule 8 of the RSC

70
 AFFIDAVITS

INTRODUCTION
1The Editorial introduction to Order 41 of the Rules of the Supreme Court of England 1965 (the “RSC”) states:
“An affidavit is a written sworn statement signed by a person (the deponent) which is used as
evidence of the matters deposed to.” Affidavits are very common in all divisions of the Superior Courts.
Order 41 is one of the most important Orders in the RSC. Its rules are a complete code for the final
requirements of affidavits.

Affidavits are the normal method of proof when evidence is required on an interlocutory hearing.
Affidavits for use in interlocutory proceedings may contain statements of information and belief with the
sources and grounds thereof (O. 41, r. 5(2)).

Affidavits must comply with the particular requirements of any other rule relevant to the application.”

1. FORM OF AFFIDAVIT
Order 41 rule 1 of the Rules of the Supreme Court of England 1965 (the “RSC”) provides: “(1) Subject to
paragraphs (2) and (3) every affidavit sworn in a cause or matter must be entitled in that cause or
matter.
(3) Where there are more plaintiffs than one, it shall be sufficient to state the full name of the first followed
by the words “and others,” and similarly with respect to defendants.
(4) Every affidavit must be expressed in the first person and, unless the Court otherwise directs, must
state the place of residence of the deponent and his occupation or, if he has none, his description,
and if he is, or is employed by, a party to the cause or matter in which the defendant is sworn, the
affidavit must state that fact.
In the case of a deponent who is giving evidence in a professional, business or other occupational
capacity the affidavit may, instead of stating the deponent’s place of residence, state the address at
which he works, the position he holds and the name of his firm or employer, if any.
(5) Every affidavit must be bound in book form, and whether or not both side of the paper are used, the
printed, written, or typed sides of the paper must be numbered consecutively.
(6) Every affidavit must be divided into paragraphs numbered consecutively, each paragraph being
as far as possible confined to a distinct portion of the subject.
(7) Dates, sums and other numbers must be expressed in an affidavit in figures and not in words.

71
(8) Every affidavit must be signed by the deponent and the jurat must be completed and signed by
the person before whom it is sworn.”
The foregoing requirements ought to be complied with when preparing an affidavit.

2. AFFIDAVIT BY TWO OR MORE DEPONENTS

Order 5 rule 20 (g) of the High Court Rules, Chapter 27 of the Laws of Zambia (“the High Court Rules”)
provides: “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.”

3. AFFIDAVIT BY ILLITERATE OR BLIND PERSON

Order 5 rule 20(g) of the HCR provides: “Where the witness is illiterate or blind, it shall state the fact, 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.” It is prudent that an affidavit deponed
by an illiterate or blind person states as such and in addition that the affidavit was read over to the deponent
and was understood accordingly. For example the Jurat in the case of blind or illiterate deponent should read
– “I having first truly and distinctly read over the contents of this affidavit and the exhibits thereto to the
Deponent, he being (blind or illiterate), who appeared perfectly to understand the same and who made his
(signature or mark) in my presence”.

4. DEFECTIVE AFFIDAVIT
Order 5 rule 13 of the HCR provides: “The Court or a Judge may permit an affidavit to be used notwithstanding
it is defective in form according to these Rules, if the Court or a Judge is satisfied that it has been sworn
before a person duly authorised.” It is clear from the foregoing that the Court is clothed with the discretion to
permit a defective affidavit in form according to the HCR to be used if the Court is so satisfied that it has been
sworn before a duly authorized person.

In addition, Order 41 rule 4 of the RSC provides: “An affidavit may, with the leave of the Court, be filed or
used in evidence notwithstanding any irregularity in the form thereof.”

72
The explanatory note 41/4/1 of the RSC states: “This rule is permissive. If the irregularity can be cured without
undue hardship, or it is not a matter of substance or affects its actual contents, then it should be put right.

The High Court has power to grant leave to a party to cure a defective affidavit.

5. CONTENT OF AFFIDAVIT
Order 5 rule 16 of the High Court Rules provides that - “Every affidavit shall contain only a statement of facts
and circumstances to which the witness deposes, either of his own personal knowledge or from information
which he believes to be true.”

Order 5 rule 17 of the High Court Rules provides that: “When a witness deposes to his belief in any matter of
fact, and his belief is derived from any source other than his own personal knowledge, he shall set forth
explicitly the facts and circumstances forming the ground of his belief.”

Further Order 5 rule 18 of the High Court Rules provides: “When the belief of a witness is derived from
information received from another person, the name of his informant shall be stated, and reasonable
particulars shall be given respecting the informant, and the time, place and circumstances of the information.”

It is important to note that in terms of Order 5 rule 15 of the High Court Rules - “An affidavit shall not contain
extraneous matter by way of objection or prayer or legal argument or conclusion.”94

An affidavit should therefore only contain statement of facts and circumstances and should not contain
extraneous matter by way of objection, prayer, legal argument or conclusion.

Order 41 rule 6 of the RSC provides that scandalous and irrelevant matters may be struck out of an affidavit.
The said order provides: “The Court may order to be struck out of any affidavit any matter which is
scandalous, irrelevant or otherwise oppressive.”

Thus, the Court is empowered to strike out the parts of an affidavit which are non-compliant with the rules of
court and contain legal arguments, conclusions, scandalous and irrelevant matter.

94
Order 5 rule 16 of the High Court Rules

73
 6. AFFIRMATION
In terms of Section 7 of the Official Oaths Act, Cap 5, a person who objects to being sworn shall be permitted
to make his solemn affirmation instead of taking oath and a person to whom it is not reasonably practicable
without inconvenience or delay to administer an oath in the manner appropriate to his religious belief, may
make a solemn affirmation instead of swearing his affidavits.

7. CERTIFICATE OF EXHIBIT
Order 5 rule 19 of the High Court Rules provides: “Where any document referred to in an affidavit and
exhibited thereto is a handwritten document other than a statement of account, book of account or extract
therefrom, there shall also be exhibited therewith a typewritten or printed copy thereof certified in such
affidavit to be a true and correct copy of the original.”

Order 41 rule 11 of the RSC provides:

“(1) Any document to be used in conjunction with an affidavit must be exhibited, and not annexed to an
affidavit.
(2) Any exhibit to an affidavit must be identified by a certificate of the person before whom the affidavit is
sworn.”

The exhibits are marked by indicating the initials and number of the exhibit at the top right hand corner of the
first page of each exhibit. For example an affidavit sworn by one Chimbwi No Plan would have exhibits
marked: ‘CNP1, CNP2’, and so on.

8. AMENDMENT OF AFFIDAVIT
Order 5 rule 14 of the High Court Rules provides: “A defective or erroneous affidavit may be amended and
re-sworn, by leave of the Court or a Judge, on such terms as to time, costs or otherwise as seem reasonable.”

An erroneous affidavit may thus be amended and re-sworn albeit, with leave of the Court.

9. 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:

74
(a)Every affidavit taken in a cause or matter shall be headed in the Court and in the cause or matter.
(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 initialed 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

75
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 Act95 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.”

CASE LAW

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.”

EXAMPLES

AFFIRMATION

I, A. B. of (state nationality and residence), do solemnly and sincerely affirm

(Set out in numbered paragraphs the facts affirmed)

Affirmed at (address) the

…… day of…………2018

before me,

(Signature) (Affirmer’s signature)

Commissioner for Oaths

95
Chapter 33 of the Laws of Zambia

76
 AFFIDAVIT AND AFFIRMATION: JOINT FORM

I, P. Q., of (state nationality and residence), make oath and say, AND I, R. S. of (state nationality and
residence), do solemnly and sincerely affirm:

And I, P. Q., for myself, say as follows:

1. (Set out in numbered paragraphs the facts to which P. Q. deposes).

And I, R. S., for myself, say as follows:

2. (Set out in numbered paragraphs the facts which R. S. affirm)

And we, P. Q. and R.S., jointly and severally say as follows:

3. (Set out in numbered paragraphs the facts to which P. Q. deposes and which R.S.
affirms jointly).

SWORN by P. Q. and

AFFIRMED by R. S. at (address)

the ………. day of ………2018

before me,

(Signature) (Signature of P. Q. and R.S.)

Commissioner for Oaths

KNOWLEDGE, INFORMATION AND BELIEF

It is within my knowledge that ………………

I am informed by (my Advocates) and verily believe that…………….

Or;

On or about ………....19… my Advocates, as I am informed by them and verily believe, (wrote to the
Defendant and requested him to) ……………

77
Or;

I verily believe that ……………… The sources of my information and the grounds on which my belief is
founded are ………………..

From the knowledge which I have obtained from perusing and studying the (accounts and papers of the
deceased) I verily believe that ……………

Or;

(Save where (otherwise expressly stated or the source of my information otherwise appears, the truth of
which I verily believe)) I depose to the truth of all the above matters of my own knowledge (obtained by me
as such (secretary or executor or as the case may be) as aforesaid).

Or;

I depose to the truth of the facts stated in this affidavit partly from my own knowledge and partly from
information, which I verily believe, (which I have derived as the result of inquiries made by me (at or of)
……….. or supplied to me by E. F., ( a partner in the firm of E. F. & Co. of (address), who (have acted for me
for many years past or acted for the deceased during his lifetime) or one of the executors of the deceased’s
estate or trustee in bankruptcy of P. Q. or as the case may be)).

Or;

I am enabled to make this affidavit from the facts within my own knowledge as (Secretary of the said
Company) and from information derived by me from an examination of the books, accounts, documents and
papers of the said (Company).

Or;

I am and have for the past 15 years been a partner in the Defendant firm and I make this affidavit of my
own knowledge gained as such partner as aforesaid

78
 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 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.

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.

79
STAY OF SUBSEQUENT ACTION UNTIL COSTS PAID
Order 17 (2 ) of the High Court Rules Chapter 27 of the Laws of Zambia states that: “If any subsequent suit
shall be brought before payment of the costs of a discontinued suit, for the same or substantially the
same cause of action, the Court or a Judge may order a stay of such subsequent suit until such costs
shall have been paid.”

In the case of Thames Investment and Securities plc v Benjamin and others96 the Court stated that where an
application for particular relief is dismissed with costs and the applicant has failed to pay the costs, the court
should as a general rule, exercise its discretion to refuse to allow the applicant to make a second application
for the same or equivalent relief.

Further, the Court in the case of Morton v Palmer97 stated that: “The principle of the practice in each court
was the same, viz, that if a litigant had brought an action or made a motion against another and had
failed he should not bring a fresh action or renew his motion until he had paid the costs of the
previous proceeding.”98 Thus the Court can stay proceedings pending the payment of costs in the aborted
action. The application to stay proceedings is made by summons accompanied by an affidavit in support.

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 exparte 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.”

96 (1984) 3 All E.R 393

97 (1881-1882) 9 QBD 89
98 ibid…page 92

80
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.

SCHEDULING CONFERENCE (ORDER 19 RULE 3)

Order 19 rule 3 of the High Court Rules provides that the Court or trial Judge may, at the scheduling
conference, refer parties to mediation in accordance with rule 4 of Order 31, or where applicable, to
arbitration.

Where a matter is referred to mediation and it is not settled or mediated within forty-five days, the matter shall
be referred back to the trial Judge who shall summon the parties within fourteen days to a scheduling
conference to chart the events.

If the failure of mediation is due to non-attendance of any of the parties to the dispute, the Court may order
the defaulting party to be liable for all the costs of the litigation whatever the outcome.

A Judge may, after a scheduling conference, summon parties to a compliance or status conference and make
any order as to costs against any defaulting party.

81
 ADMISSIONS
Introduction
The Editorial Introduction to Order 27 of the Rules of the Supreme Court of England 1965 states: “In various
ways, for the purpose of reducing costs and delay, the Rules of the Supreme Court of England
encourage parties, where appropriate, to make admissions of fact and to concede claims (or parts of
claim), and not to continue to contest the incontestable throughout the pre-trial process. Where the
admissions of fact or of a part of a case are made the Court may give judgment to the extent justified
by those concessions without waiting for the determination of other outstanding issues between the
parties. One party may by notice call on another to admit facts and, after setting down, to admit
documents.”

Notice of admissions
Any party to a suit may give notice, by his own statement or otherwise, that he admits the truth of the whole
or any part of the case stated or referred to in the writ of summons, statement of claim, defence or other
statement of any other party.99

A party to a cause or matter may give notice, by his pleading or otherwise in writing, that he admits the truth
of the whole or any part of the case of any other party.100

Any party may call upon any other party to admit, saving just exceptions, any document or fact. 101

Judgments on admissions
If any defendant shall sign a statement admitting the amount claimed in the summons or any part of such
amount, the Court or a Judge, on being satisfied as to the genuineness of the signature of the person before
whom such statement was signed, and unless it or he sees good reason to the contrary, shall, in case the
whole amount is admitted, or in case the plaintiff consents to a judgment for the part admitted, enter judgment
for the plaintiff for the whole amount or the part admitted, as the case may be, and, in case the plaintiff shall
not consent to judgment for the part admitted, shall receive such statement in evidence as an admission
without further proof.

99 Order 21 rule 6 of the High Court Rules, Chapter 27 of the Laws of Zambia (“HCR)
100 Order 27 rule 1 of the Rules of the Supreme Court of England 1965 (“RSC”)
101 Order 21 rule 2 of the High Court Rules Chapter 27 of the Laws of Zambia 2

82
If the plaintiff and defendant shall agree as to the terms and conditions on which judgment shall be entered,
the Court or a Judge, unless it or he sees good reason to the contrary, shall enter judgment on such terms
and conditions.102

At any time before or at the hearing, the Court or a Judge may, if it or he thinks fit, proceed to ascertain and
determine what are the material questions in controversy between the parties, and may reduce such
questions into writing and settle them in the form of issues, which issues, when settled, may state Where
admissions of fact or of part of a case are made by a party to a cause or matter either by his pleadings or
otherwise, any other party to the cause or matter may apply to the Court for such judgment or order as upon
those admissions he may be entitled to, without waiting for the determination of any other question between
the parties and the Court may give such judgment, or make such order, on the application as it thinks just.103

An application as provided for above may be by motion or summons. It is important to note that the jurisdiction
of the Court is discretionary, but in the absence of reason to the contrary the order is made so as to save
time and costs.104

Judgment by consent
If the plaintiff and defendant shall agree as to the terms and conditions on which judgment shall be entered,
the Court or a Judge, unless it or he sees good reason to the contrary, shall enter judgment on such terms
and conditions.105

Settlement of issues
At any time before or at the hearing, the Court or a Judge may, if it or he thinks fit, proceed to ascertain and
determine what are the material questions in controversy between the parties, and may reduce such
questions into writing and settle them in the form of issues, which issues, when settled, may state questions
of law on admitted facts or questions of disputed fact, or questions partly of the one kind and partly of the
other.106

102
Order 21 rule 5 of the HCR
103
Order 27 rule 3 of the RSC
104
Explanatory note 27/3/7 of the RSC
105
Order 21 rule 4 of the HCR 3
106
Order 22 rule 1 of the HCR

83
The Court or a Judge may, if it or he thinks fit, direct the parties to prepare issues, and the same shall be
settled by the Court or a Judge.107

The issues may be settled, without any previous notice, at any stage of the proceedings at which all the
parties are actually present, or at the hearing, if otherwise of the one kind and partly of the other. 108

At any time before the decision of the case, if it shall appear to the Court necessary for the purpose of
determining the real question or controversy between the parties, the Court may amend the issues or frame
additional issues, on such terms as it shall determine.109

Case Law
1. Muyuni Estate Limited v MPH Chartered Accountants.110 The High Court held: “The word admission is
not defined in the High Court Rules. However, it is clear that the word is not technical and bears the
ordinary meaning in the English language. The word “admission” means acknowledgment,
acceptance, concession, disclosure, or divulgence. Order 21 rule 6 of the High Court Rules was
framed for the express purpose that if there was no dispute between the parties and if there was no
dispute between the parties and if there was in the pleadings such an admission as to make it plain
that the plaintiff was entitled to a particular order, he should be able to obtain that order at once upon
motion.”

107
Order 22 rule 2 of the HCR
108
Order 22 rule 3 of the HCR
109
Order 22 rule 4 of the HCR
110
(2013) 2 Z.R. 120

84
Admission and production of documents specified in list of documents
Without prejudice to the right of a party to object to the admission in evidence of any document, a party on
whom a list of documents is served shall, unless the Court otherwise orders, be deemed to admit-
a) that any document described in the list as an original document is such a document and was printed,
written, signed or executed as it purports respectively to have been, and
b) that any document described therein as a copy is a true copy.
This paragraph does not apply to a document the authenticity of which the party has denied in his pleading.111
(1)If before the expiration of 21 days after inspection of the documents specified in a list of documents or
after the time limited for inspection of those documents expires, whichever is the later, the party on whom
the list is served serves on the party whose list it is a notice stating, in relation to any document specified
therein, that he does not admit the authenticity of that document and requires it to be proved at the trial, he
shall not be deemed to make any admission in relation to that document under paragraph (1). 112

(2) A party to a cause or matter by whom a list of documents is served on any other party shall be deemed
to have been served by that other party with a notice requiring him to produce at the trial of the cause or
matter such of the documents specified in the list as are in his possession, custody or power. 113

Notice to admit or produce documents

A party to a cause or matter may within 21 days after the cause or matter is set down for trial serve on any
other party a notice requiring him to admit the authenticity of the documents specified in the notice. 114

If a party on whom a notice under paragraph (1) is served desires to challenge the authenticity of any
document therein specified he must, within 21 days after service of the notice, serve on the party by whom it
was given a notice stating that he does not admit the authenticity of the document and requires it to be proved
at the trial.115

111 Order 24 rule 4 (1) of the RSC

112
Order 24 rule 4 (2) of the RSC
113
Order 24 rule 4 (3) of the RSC
114
Order 27 rule 5 (1) of the RSC
115
Order 24 rule 5 (2) of the RSC

85
A party who fails to give notice of non-admission in accordance with paragraph (2) in relation to any document
shall be deemed to have admitted the authenticity of that document unless the Court otherwise orders. 116

Notice to produce
A party to a cause or matter may serve on any other party a notice requiring him to produce the documents
specified in the notice at the trial of the cause or matter.117 If a notice is given, it should be given a reasonable
time before trial to enable the opposite party to produce the document.118

116
Order 24 rule 5(3) of the RSC
117
Order 24 rule 5(4) of the RSC
118 Order 27/5/2 of the RSC 6

86
 SECURITY FOR COSTS
Introduction
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.119

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. 120

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. 121

When application may be made

Where, on the application of a defendant to an action or other proceeding in the High Court, it appears to the
Court-
a) that the plaintiff is ordinarily resident out of the jurisdiction, or
b) that the plaintiff (not being a plaintiff who is suing in a representative capacity) is a 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 cost 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 a view of evading
the consequences of the litigation,

119 Order 40 rule 7 of the HCR *Order 23 rule 1 of the

120 Explanatory note 23/3/26 of the RSC
121 Atkin’s Encyclopedia of Court Forms. (1991 Issue). Vol, 14: para 3 p. 95

87
Then 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. 122

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. 123

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.124

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.125

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.126
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.127

Case Law
1. Isaac Lungu v Mbewe Kalileka128

122 Order 23 rule 1 of the RSC

123 Explanatory rule 23/3/4 of the RSC
124 Explanatory note 23/3/4 of the RSC
125 Order 23 rule 1 sub-rule 3 of the RSC
126 Order 23 rule 3 of the RSC
127 Explanatory note 23/3/27 of the RSC
128 Appeal No. 114/2013

88
This was an appeal against a ruling of the High Court, which upheld the order of the Deputy Registrar that
the appellant should pay security for costs in the sum of K40,000,000.00 (now K40,000.00) to the respondent
before his appeal to the judge at chambers could be prosecuted. The Supreme Court found the sum of
K40,000 to be excessive and in this regard held: “We want to make it very clear that the court must award
only such sum of money as will provide a ‘sufficient security’, which must be reasonable, in all the
circumstances of the case. In fact such a high amount of security undermines access to justice and
the appellant’s ability to seek and obtain a remedy through the court. We emphasise that there is no
access to justice where the justice system is financially inaccessible to litigants. We again encore
our decision in the Borniface K. Mwale129 case that costs do not include the actual amount claimed.
In the present case it seems to us that the amount of security included the loaned amount.”

Glocom Marketing Limited v Contract Haulage;130 This was an application for security for costs. The
application was made pursuant to Order 40, Rule 7, of the High Court Rules, and Order 23 Rule 1 of the
Rules of the Supreme Court (White Book). Dr. Matibini S.C, sitting then as a High Court Judge held as follows:
“The order for payment of security of costs is not one that is made freely, and will not be made simply
because the plaintiff appears impecunious. Before exercising the discretion to order any plaintiff to
give security of costs, the Court will have regard to all the circumstances of the case, and will grant
the order if it thinks just to do so. The circumstances which the Court may take into account include;

the plaintiff's bona fides, and his prospects of success; whether the defendant has admitted on the
pleadings or elsewhere that money is due; whether there is a substantial payment into Court, or an
open offer of a substantial amount; whether the application for security is being used oppressively
e.g. to stifle a genuine claim; whether the plaintiff's want of means has been brought about by any
conduct of the defendant, such as delay in doing part of the work; the substantial rights of
enforcement of judgment, and the stage of the proceedings at which the application is made.

An order for security of costs seeks to protect the party in whose favour it is made against being
unable to enforce any costs order he may later obtain. It is essential that applications for security of

129 (1998) Z.R. 71

130 1998/HP/787

89
costs are made at an early stage in the proceedings. Lateness may itself be a reason for refusing an
order.

The amount to be imposed as security of costs should be such as the Court thinks just in all the
circumstances of the case.”

Rosemol General Suppliers Ltd & Rosemary Bwalya v West Star Properties Limited, Lamasat International
Ltd & Kobil Zambia Limited;131 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 prospects 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.”

Knight v Ponsonby;132 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

131 SCZ/8/282/2015
132
[1925] 1 K.B. 545

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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 133, 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.

133 [1923] 2 K.B 844

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 DISCOVERY AND
The whole purpose of going to trial involves the court establishing the truth. Pleadings merely contain
allegations and the purpose of trial is proving contested issues.

Discovery
The purpose of discovery is the process whereby parties interact in order to establish what kind of
documentary exists that is relevant to the issues in contention. Order 19 of the HCR provides the procedure:
once the defence has been filed, a judge must summon the parties to a scheduling conference. The purpose
of a scheduling conference is for the court to now give directions to the parties. What follows is inspections,
admissions, interrogatories and then the parties agree on the place and mode of trial.

During the scheduling conference, a party may move the court for a judgment on admission where the
defending party agrees on certain aspects. Trial would thus be for the matters still under contention. It is from
the pleadings that you are able to identify the issues for trial. In a dispute of negligence, one of the issues
you have to prove is that there was a duty of care and secondly that the duty was breached, and finally that
you suffered loss, hence damages that are reasonably foreseeable. Once you have identified the issue, the
next point is how to prove those issues. In certain cases, you may need documentary evidence to prove
those allegations.

Discovery is intended to identify documentary evidence that is necessary for the resolution of the issues in
contention between the parties, it is not every document that may be material. The court will at the scheduling
conference give directions on when you’re going to conduct discovery and inspection. Civil trials are not
supposed to be conducted by way of an ambush, there has to be full disclosure of all the materials relevant
to the case. You cannot be allowed to spring up a document from nowhere at trial. Once the documents are
disclosed, documents are interrogated for veracity and authenticity. The idea is that there should be no
surprises. The court will then issue order for directions stating that there should be discovery within fourteen
(14) days from the date of the order. It may also say that inspection should follow another 14 days thereafter.
Order 19 is limited in its scope, it talks about discovery, inspection, interrogatories but doesn’t provide details
about how you go about conducting all these. The HCR are thus deficient to this extent therefore need to
refer to the white book. Discovery is extensively covered in Order 24 of the RSC, outlining how to conduct
discovery. In most cases, discovery is done mutually, voluntarily. You look through the documents that your

92
client has given you and then you make a list. Normally discovery is done by way of list, of the documents
that you intend to introduce into court in order to prove your claim, especially those which you have referred
to in your pleadings.

Discovery is never done in a vacuum. It is guided by the pleadings, which are the skeleton of your case. It
doesn’t mean that there is always discovery, it depends on the nature of the case, e.g. where the case is
based on an oral agreement, you may not have documentary evidence to produce. You have to begin on the
premise of what documentary evidence you have to prove your case. Documentary evidence is better than
oral evidence because the document speaks for itself. Parties will now exchange their lists. Order 24 provides
that the moment you settle your pleadings, the court has to give directions.

What happens when a party refers to documents which are material to the case but have not been included
on the list? You are at liberty to move the court pursuant to Order 24(3) for discovery of those documents by
way of an order for discovery. The duty to disclose is an ongoing obligation until the matter is disposed of. If
after discovery further documents become available, there is an obligation on the party to disclose. It is not
allowed to produce a document in court without giving the other party an opportunity to investigate the
document, that is to say, by ambush or by surprise. A party can object to discovery of certain documents for
various reasons such as the information is privileged (“without prejudice”). Whether the document is
privileged or not is dependent on the facts of each particular case. The whole concept of privilege is designed
to assure the general public that you should be free to tell your lawyer anything and everything, because a
lawyer needs access to information to defend the client’s interests effectively.

Inspection
During inspection, parties are at liberty to take copies of the documents included in a list to allow them
sufficient time to interrogate the documents. It is also an opportunity for parties to object to documents and
give reasons why.

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 INTERROGATORIES
Under Order 19 the court will give directions with respect to discovery, inspection, interrogatories etc.

Discovery by Interrogatories
Discovery is deigned to discover the existence of some documents. What happens if you want an answer to
a certain question or facts before trial? In such a situation there is room for interrogatories. These are provided
for in Order 26 of the RSC. Interrogatories are a set of certain questions which you administer to the other
party to the proceedings which can be administered by either party.

There are no set rules as to when to administer the interrogatories. The answers that the person introduces
in the interrogatories can be admitted as evidence in court. Interrogatories are limited to ask questions that
are relevant to proving your case. They cannot be used for collateral purposes to benefit other processes.
The objective of the interrogatories is twofold:
 To allow for the fair disposal of a matter
 To save up costs and shorten the process for trial
Interrogatories can only be administered with leave of court by way of summons. You have to indicate in your
court process the duration within which you need the answers. If a party to the proceedings is a company,
you’ll be required to identify the person/officer whom the interrogatories will be administered. You can
stipulate the interrogatories for several officers in the same application.

It is not automatic that whenever you ask for interrogatories then the other party has to answer them. They
have the right to object to answering those questions. They are invariably the same kind of questions that
you would ask in court. A person can object for example on the basis of privilege – that the information
required is privileged. The other basis could be that the answer might be self-incriminating. You have to be
truthful and answer all the questions unless you have very good reasons for not answering those questions.
Sometimes the answers given may lead to more questions. You can seek leave of court for Further
Interrogatories to be administered. With leave of court, when the answers to the interrogatories have been
inadequate, you may administer the interrogatories orally.

Failure to comply with order

94
A plaintiff can apply to have the defence struck out and judgment entered against a defendant who fails to
answer the interrogatories. In case where the plaintiff does not answer the interrogatories, the defence can
move the court and apply to have the action dismissed for failure to answer the interrogatories.

There is a debate raging over the implications of article 8(1) (e) of the Constitution?? Matters have to be
decided on merit

Use of answers to interrogatories at trial

The court can give directions as what portions of the answers will be admitted as evidence.

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 PRELIMINARY MOTIONS/DISPOSAL ON POINT OF LAW
INTRODUCTION
The learned authors of Atkin’s Encyclopaedia of Court Forms134 write as follows: “The court has power at
any stage of the proceedings to order that a question or issue, whether of fact or of law or partly of
fact and partly of law, and whether raised in the pleadings or otherwise, should be tried as a
preliminary question or issue.”

The learned authors further state at page 168 para. 11 of the same volume: “Where it appears to the court
at any stage of the proceedings that any question of law or construction of any document arises
which is:
I. Suitable for determination without a full trial of the action; and
II. Such determination will finally determine the entire cause or matter or any claim or issue therein;
the court may make such determination may thereupon dismiss the action and make such order or
judgment as it thinks fit.”

DETERMINATION OF QUESTION OF LAW OR CONSTRUCTION - ORDER 14A RSC

The Court may upon the application of a party or of its own motion determine any question of law or
construction of any document arising in any cause or matter at any stage of the proceedings where it appears
to the Court that
i. Such question is suitable for determination without a full trial of the action, and
ii. Such determination will finally determine (subject only to any possible appeal) the entire cause or
matter or any claim or issue therein.135
It is important to note that an application for determination of a question of law or construction may be made
by a party or the Court may make such on its own motion. The Court may proceed to make such determination
at any stage of the proceedings.136

Upon such determination the Court may dismiss the cause or matter or make such order or judgment as it
thinks just.137

134 Vol 23, page 162, para.162

135 Order 14A of the Rules of the RSC
136 Explanatory note 14A/2/2 of the RSC
137 Order 14A, Rule 1(2) of the RSC

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The requirements of employing the procedure under order 14A are -
(i) The defendant must have given notice of intention to defend;
(ii) The question of law or construction must be suitable for determination without a full trial of the
action;
(iii) Determination of the question of law or construction must finally (subject to appeal) determine
the entire action or any claim or issue therein;
(iv) The parties must have had an opportunity of being heard on the question or consented to an
order or judgment on such determination.138
The question of law or construction to be determined should be stated or formulated in clear, careful and
precise terms so that there should be no difficulty or obscurity, still less any ambiguity about what is the
question that has to be determined. This is because the determination will be final.

The procedure under order 14A for the determination of a question of law or construction without a full trial
virtually replaces the trial process.

The application should be made by summons or motion returnable before a judge if the judgment or order
sought can only be granted by a judge e.g injunction.

The summons should state in clear and precise terms (1) the question of law or (2) the construction which
the court is required to determine.

The summons should also specify with particularity what judgment or order is being claimed upon
determination of the question of law or construction.

Summons should be supported by affidavit evidence deposing to all the material facts relating to the question
of law or construction to be determined by the court. The defendant may file affidavit evidence in answer.

In addition, order 14A also empowers the Court to make a final determination of a question of law without the
need for a prior order of the Court under Order 33, rule 3 of the RSC and rule 4(2) for the determination of a
preliminary question of law whether raised on the pleadings under Order 18 rule 11 of the RSC or otherwise.

138 Explanatory note 14A/2/3

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Oral Application
A party can make an application under order 14A orally in the course of any interlocutory application to the
court.

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.139

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.140

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.141
Case Law
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

139 Order 33 rule 3 of the Rules of the Supreme Court of England 1965
140 Explanatory note 33/3/1 of RSC
141 Order 22 Rule 7 of the RSC

98
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.

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 INTERIM INJUNCTIONS
Introduction
An injunction is an order of the court either compelling a party to take a certain step or steps (mandatory
injunction) or restraining a party from taking a specified step or steps (prohibitory). An injunction is therefore
an order directing a party, and occasionally, a non-party, to perform a certain act or refrain him from
performing a certain act in connection with the ongoing litigation. A quia timet injunction is an interim
injunction to restrain wrongful acts which are threatened or imminent, but which have not yet been committed.

Injunctions may be further classified according to the period of time for which the order is to remain in force.
A perpetual injunction is a final judgment, and for that reason is usually granted only after trial on the merits.
An interim injunction, by contrast, is a provisional measure taken out at an earlier stage in the proceedings
before the court has had an opportunity to hear and weigh fully the evidence on both sides.

Injunctions are only remedies, so they can only be granted if the plaintiff has a substantive cause of action.
Lord Diplock in the Owners of Cargo Lately Laden on Board the Siskina v Distos Company Naviera SA
(Siskina) held that:142 “A right to obtain an [interim] injunction is not a cause of action. It cannot stand
on its own. It is dependent upon there being a pre-existing cause of action against the defendant
arising out of an invasion, actual or threatened by him of a legal or equitable right of the [plaintiff] for
the enforcement of which the defendant is amendable to the jurisdiction of the court. The right to
obtain an [interim] injunction is merely ancillary and incidental to a pre-existing cause of action.”

The essential nature or character of an injunction is that it is a temporary measure to maintain or preserve
the status quo pending determination of the disputed rights at trial.

Principles upon which the court may exercise its discretion to grant an injunction
The power to grant interim injunctions is at the discretion of the court, and this should be exercised
reasonably, equitably, and judiciously. The exercise of the discretion is based on sound legal principles. The
following are the general principles and guidelines which will be taken into consideration before an injunction
is granted:-

142
[1979] AC 210.

100
a. The first question to be addressed is whether or not a plaintiff has raised a serious question, deserved to
be determined at trial. That is to say, the claim must not be frivolous or vexatious. If the claim is frivolous
or vexatious, the interim injunction will be refused at the outset;
b. If the Applicant has established a serious question to be tried, the court will then consider whether or not
the plaintiff will be adequately compensated by an award of damages. If a plaintiff can be adequately
compensated, the interim injunction application ought to fail, however meritorious the claim may be;
c. In the event that there is doubt as to the adequacy of damages and the ability of the defendant to pay them
if the plaintiff were to succeed at trial, the court will then proceed to the next stage, and consider the balance
of convenience;
d. The balance of convenience test may be expressed in terms of whether the risk of injustice if the interim
injunction is refused, outweighs the risk of injustice if the injunction is granted;
e. Where the balance of convenience is evenly balanced, the court will generally take such measures as may
be necessary to preserve the status quo.

Detention, preservation, etc of subject matter of cause or matter

It shall be lawful for the Court or a Judge, upon the application of any party to a suit, and upon such terms as
may seem just, to make any order for the detention, preservation or inspection of any property being the
subject of such suit, and, for all or any of the purposes aforesaid, to authorize any person or persons to enter
upon or into any land or building in the possession of any party to such suit; and, for all or any of the purposes
aforesaid, to authorize any samples to be taken, or any observations to be made or experiments to be tried,
which may seem necessary or expedient for the purpose of obtaining full information or evidence. 143

Order for sale of perishable goods

It shall be lawful for the Court or a Judge, upon the application of any party to a suit, to make any order for
the sale by any person named in such order, and in such manner and on such terms as to the Court or a
Judge may seem desirable, of any goods, wares or merchandise, the right to which is in dispute in the suit,
which may be of a perishable nature, or likely to depreciate from keeping, or which, for any other just and
sufficient reason, it may be desirable to have sold at once.144

143
Order 27 Rule 3 of the High Court Rules, Chapter 27 of the Laws of Zambia.
144
Order 27 Rule 3 of the High Court Rules, Chapter 27 of the Laws of Zambia.

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Interlocutory injunction in support of arbitral proceedings
A party may, before or during arbitral proceedings, request from a court an interim measure of protection
and, the court may grant such measure.145

Upon a request as above, the court may grant-

(a) an order for the preservation, interim custody, sale or inspection of any goods which are the subject
matter of the dispute;
(b) an order securing the amount in dispute or the costs and expenses of the arbitral proceedings;
(c) an interim injunction or other interim order; or
(d) any other order to ensure that an award which may be made in the arbitral proceedings is not rendered
ineffectual.146

Mareva Injunction
In an action in which the plaintiff seeks to recover his property, the Court has jurisdiction to grant an
interlocutory injunction restraining the disposal of property over which the plaintiff has a proprietary claim. 147

The single most significant feature of the Mareva jurisdiction is that it goes beyond this and enables the
Court to grant the Plaintiff an interlocutory order restraining the defendant from disposing of, or even merely
dealing with, his assets, being assets over which the plaintiff asserts no proprietary claim but which after
judgment may be attached to satisfy a money judgment.148

A mareva injunction is essentially an injunction obtained against a defendant restraining him from disposing
of his assets inside or even outside the jurisdiction in order to defeat any judgment which the plaintiff has
obtained or may obtain for a certain or approximate sum. 149

Ex-parte injunction application

145 Order 29 Rule 1(2) of the Rules of the Supreme Court of England 1965.
146 Section 11(2) of the Arbitration Act No. 19 of 2000.
147 Explanatory note 29/L/36 of the Rules of the Supremen Court of England 1965.
148 Ibid.
149 Atkin’s Encyclopaadia of Court Forms. (1991 Issie). Vol, 22: para 5 p. 61.

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Where an application for the grant of an injunction is one of urgency such application may be made ex parte
on affidavit but, except as aforesaid, such application must be made by motion or summons.

Ex parte applications are meant for cases of real urgency. Ngulube CJ made the following instructive
observation in the case of Shamwana v Mwanawasa (1993 – 1994) ZR 149 (HC): “The granting of the ex
parte injunction is the exercise of a very extraordinary jurisdiction, and therefore the time at which
the plaintiff first had notice of the act complained of will be looked at very carefully in order to prevent
an improper order being made against a party in his absence, and if the plaintiff has acquiesced for
sometime, it will not be granted.”

Duty to make full and frank disclosure

A party applying for an ex parte interim injunction has a duty to make a full, fair and accurate disclosure of all
the material facts to the court. The party must draw the court’s attention to significant factual, legal and
procedural aspects of a matter. In R v Kensington Income Tax Commissioners, Ex Parte Princess Edmond
de Polignac,150 the following incisive observation was made: “It is perfectly settled that a person who
makes an ex parte application to the court…. is under an obligation to the court to make the fullest
possible disclosure of all material facts within his knowledge and if he does not make the fullest
possible disclosure, then he must not obtain any advantage from the proceedings and he will be
deprived an advantage he may have already obtained by means of the order which has thus wrongly
been obtained by him.”

The duty of disclosure applies not only to material facts known to the plaintiff, but also material facts which
he should have known, if he had made proper inquiries.151

DISCHARGE OF AN INTERIM INJUNCTION

An Interim injunction granted ex parte, may on sufficiently cogent grounds be discharged or waived on an
application itself made ex parte.152 Further, where an interim injunction has been granted following a full inter
partes hearing, there is no jurisdictional bar to the court hearing an application by the enjoined party to

150
[1917] 1 KB 486 (CA) 509.
151
Brinks Mat Limited v Elcombe [1988] 1 WLR 1350.
152
London City Agency (JCD) Limited v Lee [1969] 3 All ER 1376.

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discharge it.153 Applications to discharge an interim injunction are made to the same judge who granted the
initial interim injunction.

Undertaking as to damages
As a condition for obtaining an injunction, a plaintiff must give (unless the court orders otherwise) an
undertaking to the court to pay any damages sustained by the respondent that the court considers the plaintiff
should pay.154

The undertaking which is often referred to as “cross-undertaking” is a promise to pay the defendant
compensation if the plaintiff later fails to establish his right to the interim injunction. The undertaking in
damages is given to the court, not to the party against whom the interim order is obtained. 155 Accordingly,
any failure to comply with the undertaking is not a breach of contract, but will be punished by the court through
the remedies available for contempt.156 However, the court cannot compel a party to give an undertaking,157
it will refuse the application if he declines to provide one.158

Penal notice
It is a pre-requisite for enforcement by way of committal (except in cases of criminal contempt) that the
defendant- 159
(a) Has been served personally with a copy of the injunction indorsed with a notice informing the alleged
contemnor that disobedience to it will render him liable to committal (penal notice); or
(b) Was present in court when the injunction was granted; or
(c) Has been notified of the terms of the injunction.

Note that Order 45, rule 7(4) of the RSC provides that: “There must be prominently displayed on the front of
the copy of an order served under this rule a warning to the person on whom the copy is served that
disobedience to the order would be a contempt of court punishable by imprisonment, or (in the case of an

153
RSC Order 29, r1A(33).
154
Ibid. 442.
155
Hoffman-La Roche and Co AG v Secretary of State for Trade and Industry [1974] 2 All ER 1128 1150.
156
Loughlin and Gerlis Civil Procedure 307.
157
Zuckerman Zucherman on Civil Procedure: Principles of Practice 443.
158
Loughlin and Gerlis Civil Procedure 307.
159
Bean Injunctions 155-156.

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order requiring a body corporate to do or abstain from doing an act) punishable by sequestration of the assets
of the body corporate and by imprisonment of any individual responsible.”

CASE LAW TO READ

Shell & BP Zambia Limited v Conidaris & Others160: The Supreme Court held: “A Court will not generally
grant an interlocutory injunction unless the right to relief is clear and unless the injunction is necessary to
protect the Plaintiff from irreparable injury...”

Mutuwila Farms Ltd v Johan Nortje161: The Supreme Court at page 21 of the Judgment stated that: “The law
with regard to the grant of interlocutory injunctions is well settled after the decision in the celebrated cases of
American Cyanamid Co. v Ethicon Ltd. The principles laid down in this case are still good law. Our own
decisions in the cases of Shell v BP Zambia Limited, Turnkey Properties and Harton Ndove cited to us by
counsel for the Defendant endorse the Cyanamid principles and have added to our jurisprudence on
injunctions. One of the cardinal principles in the grant of an interlocutory injunction is that the applicant must
show inter alia the he has an arguable case and that if he is not granted relief, he will suffer from irreparable
injury, that is injury that cannot be atoned for by damages.”

Elmar Engineering Limited v Allegra Mining Zambia Limited 162: In this case, the High Court granted an ex-
parte order for a Mareva injunction in favour of the plaintiff against the defendant. It was held on inter parte
hearing that:

“The test for the grant of a Mareva injunction is that: there must be a debt due and owing; and there must
exist a danger that the debtor may dissipate or dispose of his assets so as to defeat any judgment the Court
may grant in favour of the plaintiff.

The question whether or not there is a debt due and owing is left for the main hearing. For now it is safe to
say that the endorsement in the summons suggests that this is the position.

160
(1975) Z.R. 174
161
(2010) 3 Z.R. 88
162
(2011) 2 Z.R. 68

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There is need for evidence to support the allegations of fear of dissipation of assets; the sources and ground
of the allegations to enable the Court assess their strengths”

Finsbury Investments Limited & 3 Others v Antonion Ventriglia & Another163: This was a notice of motion filed
pursuant to rule 48 of the Supreme Court Rules, Chapter 25 of the Laws of Zambia; Order 29, rule 1A/33 of
the Rules of the Supreme Court, and the inherent jurisdiction of the court. By the notice of motion, the
applicants sought to discharge the order of interim injunction granted by the court on 21 st April, 2010. The
Supreme Court held: “It is trite law than an ex parte injunction is a temporary order which is given subject to
inter partes hearing. And the judge who grants it, retains the discretion to dissolve it if after hearing the
opposing side it becomes obvious that it should never have been granted at the ex parte stage or that its
continuation is no longer necessary.

Once an interlocutory injunction is discharged, there is nothing to stay, there is no court order in place which
is capable of being enforced. The parties revert to the original positions in which they were before the
injunction was granted.

When a court grants an ex parte injunction which is later dissolved, the only remedy remaining to that party
applying for it, is to appeal against such refusal. The appeal against that refusal will be a fresh application
before the full court because a single judge of the court, has no jurisdiction to grant an injunction.”

Turnkey Properties v Lusaka West Development Corporation & Another164. In this case the Supreme Court
held inter alia that:
(i) An interlocutory injunction is appropriate for the preservation or restoration of a particular situation
pending trial; and
(ii) That it is improper for a court hearing an interlocutory application to make comments which may have
the effect of pre-empting the decision of the issues which are to be decided on the merits to the trial.

163
(2013) 2 Z.R. 412
164 (1984) Z.R. 84

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John Mumba & 2 Others v Zambia Red Cross Society165 On appeal against the High Court’s refusal to review
and enforce its own ruling, the Supreme Court held: “When a Court grants an ex-parte Injunction which is
later dissolved, the only remedy remaining to the party applying for it, is to appeal against such refusal. The
appeal against refusal to grant an injunction will undoubtedly be a fresh application before the full Court
because a single Judge has no jurisdiction to grant an injunction.”

165
(2006) Z.R. 137

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 PLACE AND MODE OF TRIAL AND SETTING DOWN MATTER FOR TRIAL
SETTING DOWN FOR TRIAL
After the close pleadings, all documents which a party intends to refer to during the trial must be together into
a paginated file referred to as trial bundles. The bundles will comprise a bundle of pleadings and bundle of
documents.
A bundle of pleadings will contain the following:
(a) the writ,
(b) the pleadings (including any affidavits ordered to stand as pleadings),
(c) any request or order for particulars and the particulars given, and any interrogatories and answers
thereto,
(d) all orders made in the action except only any order relating only to time,

The bundle of documents on the other hand will contain documents which were listed and inspected during
discover and inspection of documents.

Order 31 rule 2 of the High Court Rules provides that:

(a) every order made in an action commenced by writ of summons, which provides for the mode of trial,
shall provide for a period within which the plaintiff is to set down the action for trial.
(b) where the plaintiff does not, within the period fixed under sub-rule (1), set the action down for trial,
the defendant may set the action down for trial or may apply to the Court for a Judge to dismiss the action
for want of prosecution, and on the hearing of any such application, the Court or a Judge may order the
action to be dismissed accordingly or may make such other order as the Court or a Judge may seem just.
(c) every order in an action described in sub-rule (1) which provides for the mode of trial shall contain
an estimate of the length of the trial.

Each of the bundles whether pleadings or document shall-

(a) be bound up in book form in chronological order;
(b) have the pages thereof serially numbered;
(c) contain a complete index of the contents thereof; and
(d) have endorsed on a cover sheet thereon the title of the action together with the names, addresses and
telephone numbers of the Advocates acting for the party filling the bundles.

108
Following the preparation of the bundles of pleadings and documents, in order to set down for trial, the party
ought to deliver to the proper officer a request that the action may be set down for trial at the place specified
in the order for directions.

The party setting down ought to lodge with the court a request that the action be set down for trial and also
lodge the bundles of pleadings and documents into Court.

A party who sets down a matter for trail must thereafter within 24 hours notify the other party that he has
done so.

NON ATTENDANCE OF PARTIES AT HEARING

Where a civil cause on the cause list has been called, if neither party appears, the Court shall, unless it sees
good reason to the contrary, strike the cause out of the cause list.

If the plaintiff does not appear, the Court shall, unless it sees good reason to the contrary, strike out the cause
(except as to any counter-claim by the defendant), and make such order as to costs, in favour of any
defendant appearing, as seems just: “provided that, if the defendant shall admit the cause of action to the full
amount claimed, the Court may, if it thinks fit, give judgment as if the plaintiff had appeared.”

If the plaintiff appears, and the defendant does not appear or sufficiently excuse his absence, the Court may,
upon proof of service of notice of trial, proceed to hear the cause and give judgment on the evidence adduced
by the plaintiff, or may postpone the hearing of the cause and direct notice of such postponement to be given
to the defendant.

Where the defendant to a cause which has been struck out has a counter-claim, the Court may, on due proof
of service on the plaintiff of notice thereof, proceed to hear the counter-claim and give judgment on the
evidence adduced by the defendant, or may postpone the hearing of the counter-claim and direct such
postponement to be given to the plaintiff.

Any judgment obtained against any party in the absence of such party may, on sufficient cause shown, be
set aside by the Court, upon such terms as may seem fit.

109
Any civil cause struck out may, by leave of the Court, be replaced on the cause list, on such terms as to the
Court may seem fit. (Refer to Order 35 HCR)

110
 JUDGMENT
The decision or judgment in any suit shall be delivered in open court, unless the Court otherwise directs. If
the Court reserves judgment at the hearing, parties to the suit shall be served with notice to attend and hear
judgment, unless the Court, at the hearing, states the day on which judgment will be delivered, in which case
there shall be no further notice. All parties shall be deemed to have notice of the decision or judgment if
pronounced at the hearing, and all parties served with notice to attend and hear judgment shall be deemed
to have notice of the judgment when pronounced.

RATE OF INTEREST ON JUDGMENT

Order 36 rule 8 provides that where a judgment or order is for a sum of money, interest shall be paid thereon
at the average of the short term deposit rate per annum prevailing from the date of the cause of action or writ
as the Court or Judge may direct to the date of judgment.

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 as may be determined by the Court which
rate shall not exceed the current lending rate as determined by the Bank of Zambia from the time of entering
such judgment, order or decree until the same shall be satisfied. (Judgments Act Cap 81)

PAYMENT BY ISNTALMENTS
Where any judgment or order directs the payment of money, the Court or Judge may for sufficient reason
order that the amount shall be paid by instalments, with or without interest. The order for payment by
instalment may be made at the time of giving the judgment, or at any time otherwise, and may be
rescinded or varied upon sufficient cause, at any time. The order shall state that upon the failure of any
instalment, the whole amount remaining unpaid shall forthwith become due.

Provided that where there is a default in paying any one instalment, there shall be no order for stay of
execution on the balance outstanding (Order 36 rule 9 HCR)

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 REVIEW OF JUDGEMENTS
Order 39 of the High Court Rules provides that;

“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:

Provided that where the judge who was seised of the matter has since died or ceased to have
jurisdiction for any reason, another judge may review the matter.

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 application shall not of itself operate as a stay of execution unless the Judge so orders, and such
order may be made, upon such terms as to security for performance of the judgment or decision or
otherwise as the Judge may consider necessary. Any money in court in the suit shall be retained to
abide the result of the motion or the further order of the Judge.”

Therefore, you may move the court or a judge to review his decision except where there is an appeal. Once
you have appealed then the court doesn’t have the jurisdiction.

An application for leave to review must be made within 14 days from the date when the decision was made.
After the expiry of 14 days, you will need to make an application for special leave to review the decision.
Upon review, the judge can vary or confirm his earlier decision either wholly or in part of he can grant the
application. Review of a decision is always at the discretion of the court.

The judge can take fresh evidence in the matter after which he can made the decision to reverse, vary of
confirm his earlier decision.

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

112
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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 COSTS
Introduction
Costs are the expenses of litigation or prosecution allowed in favour of one party against the other by the
court.166 Costs include legal fees, charges, and disbursements167 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.168

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.”

The Supreme Court in the Kuta Chambers case further held that: “The party and party costs, that is to
say all the costs necessary to enable the adverse party to conduct or defend the litigation,
excluding luxuries, will generally be awarded to the successful party. The object of these costs
is to indemnify the successful party against the expenses to which he has been put by the unsuccessful
party. We must also stress that the effect of this is to give the successful litigant a full indemnity for all
costs reasonably incurred by him in relation to the action, except advocate and client costs, where these
are applicable.”169 (Emphasis ours)

166 Bryan A. Garner, Black’s Law Dictionary, 8 th ed. West, a Thomson Business (2004) p. 372
167 The Legal Practitioner’s Act, Chapter 30 of the Laws of Zambia
168 Atkins Court Forms, Vol 13, 2nd Ed. (1992) issue, Para 8, Page 99
169 Ibid…page 19

114
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.170

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.171

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.

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:172 “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
him.”

170 Order 40 rule 6 of the High Court Rules, Chapter 27 of the Laws of Zambia
171 Ibid
172 High Court Rules XL, r2.

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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 amount 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.

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:173 “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:174 “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,175 or if still dissatisfied with the
review by the Taxing master, apply for review to a Judge in Chambers.

173 High Court Rules Order XL, r 3(1), Court of Appeal Rules Order XII, r 4(1) and Constitutional Court Rules Order XIII, r 4(1).
174 High Court Rules Order XL, r 5(1), Court of Appeal Rules Order XII, r 5 and Constitutional Court Rules Order XIII, r 5.
175 Under the High Court Rules Order XL, r 3(10.

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 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.176 A party who begins proceedings for
taxation must, at the same time, lodge in the appropriate office a bill of costs. 177

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.
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. 178

Documents to file with the bill of costs

A party who begins proceedings for taxation must, at the same time, lodge in the appropriate office, unless
the taxing officer otherwise orders, the papers and vouchers specified below in the order mentioned –
(i) a bundle comprising all civil legal aid certificates and amendments thereto, notices of discharge or
revocation thereof and specific legal aid authorities;
(ii) unless the relevant information is included in the judgment or order or the parties have agreed the times
of the hearings, a certificate of times or a copy of the associate's certificate;
(iii) a bundle comprising fee notes of counsel and accounts for other disbursements;
(iv) one complete set of pleadings arranged in chronological order, with any interlocutory summonses and
lists of documents annexed to it;
(v) cases to counsel to advise with his advice and opinions, and instructions to counsel to settle documents
and briefs to counsel with enclosures, arranged in chronological order;
(vi) reports and opinions of medical and other experts arranged in chronological order;
(vii) the solicitor's correspondence and attendance notes; and

176 Order 62 Rule 29 (1) of the Rules of the Supreme Court of England, 1965
177 Order 62 Rule 29 (7) (c) of the Rules of the Supreme Court of England, 1965
178 Ibid

117
(viii) any other relevant papers duly bundled and labelled.179

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. 180

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.181
The agreement shall be in writing and signed by the person to be bound thereby or his agent in that behalf.182

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. 183

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

179 Order 62 Rule 29 (7) (d) of the Rules of the Supreme Court of England, 1965
180 Section 74(1) Legal Practitioners Act Cap 30.
181 Section 74(2) Legal Practitioners Act Cap 30.
182 Section 74(3) Legal Practitioners Act Cap 30.
183 Section 76, Legal Practitioners Act Cap 30.

118
conduct unbefitting a practitioner in terms of section 53(ii) of the Legal Practitioners’ Act, Chapter 30 of the
Laws of Zambia.

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.184

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.185

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.186

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.187

184 Order 50 rule 2 of the High Court Rules, Chapter 27 of the Laws of Zambia
185 Order 50 rule 3 of the High Court Rules, Chapter 27 of the Laws of Zambia
186 Order 50 rule 10 of the High Court Rules, Chapter 27 of the Laws of Zambia
187 Order 40 rule 3 (1) of the High Court Rules, Chapter 27 of the Laws of Zambia

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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.188

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.189

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. 190

188 Order 40 rule 3 (2) of the High Court Rules, Chapter 27 of the Laws of Zambia
189Order 40 rule 3 (4) (3) of the High Court Rules, Chapter 27 of the Laws of Zambia
190 Order 40 rule 5 (1) of the High Court Rules, Chapter 27 of the Laws of Zambia

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 ENFORCEMENT OF JUDGMENTS AND ORDERS
There are a number of methods that a judgment creditor may employ in order to obtain compliance or
satisfaction with a money judgment. The different methods will be found in the High Court Rules and the
Rules of the Supreme Court of England, 1965 where the High Court Rules are deficient.

A judgment creditor may use more than one method of enforcement at the same time or consecutively. There
is no need for one to seek leave of court before enforcing a judgment or order except in any of the following
circumstances:

(a) If 6 years has elapsed since the judgment;

(a) If the party entitled to or liable to execution under the judgment has died; and
(b) If goods sought to be seized are in the hands of a receiver.

Property liable to execution

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.191

Methods of enforcing money judgments

Writ of fieri facias
A writ of fieri facias commonly referred to as writ of fifa is the most popular mode for enforcement of a money
judgment by seizure and sale of the judgment debtors’ goods. The point to note is that the amount payable
to be endorsed on the writ of fifa must be quantified and must have been ordered by the court. A judgment
creditor must file a praecipe (request) for the issue of the writ of fifa and the writ must be signed by the Legal
Practitioner representing the judgment creditor.

Walking possession
It is usual for the bailiff to enter into agreement with the judgment debtor whereby it is agreed that the bailiff
will take walking possession of the goods. Thus the good remain where they are until payment or sale, the
judgment debtor undertaking not to remove or damage them.

191
Order 42 r1 HCR

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Garnishee proceedings
A judgment creditor may enforce a judgment or order to recover a judgment debt by attaching money owed
to the judgment debtor by a third party through a process known as garnishee proceedings. A judgment
creditor may obtain an order – a garnishee order – against a third party, known as a garnishee, whereby the
money or debt or a portion of the money or debt owed by the garnishee to the judgment debtor is attached
to discharge or pay the money due to the judgment creditor. For one to employ this method for enforcement
of a money judgment, there must be in existence a judgment or order for a specific sum of money. There
must be a quantified debt to be attached. Thus, the debt must be due.

Procedure for Garnishee Proceedings

Attaching a debt through garnishee proceedings, involves a two-stage process.192 First apply for an order
nisi or for leave to serve notice on the intended garnishee.193 The application is made ex-parte.

The order is for the garnishee to show cause. Meantime the money or debt the subject of the proceedings
is attached. In the event that the garnishee is the Financial Institution which holds the judgment debtor’s,
deposits, the application must inter-alia state the name and address of the branch where the judgment
debtor’s account is believed to be held etc.

In the meantime until the next hearing when the court will decide whether or not to make the order final, the
garnishee will not make any payment which reduces the amount attached.

In the second stage of the proceedings there is inter-partes hearing for the final order. The garnishee must
be given an opportunity to show cause why an attaching order should not be made. The burden of showing
why an order nisi should not be made final is on the judgment debtor.

The order nisi must be served on the garnishee personally at least 15 days and on the Judgment debtor at
least 7 days before the time appointed by the order for the further consideration of the matter. 194

Once the order is served it binds the garnishee from the date of service of the order.

192
Order 49 r1 RSC.
193
Order 49 r2 RC.
194
Order 49 r3(1)(a) RSC.

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Writ of delivery
Where a plaintiff obtains a judgment or order for the delivery of specific goods that does not give the defendant
the option of paying the assessed value of the goods. Instead, the judgment or order may be enforced by a
writ of specific delivery.

Similarly the judgment or order is for the recovery of specific goods or payment of their assessed value, the
judgment or order may be enforced by a writ of delivery or their assessed value.

RSC order 45 rule 4(1) provides 4(1) subject to the provisions of these rules, a judgment or order for the
delivery of any goods which does not give a person against whom the judgment is given or order made the
alternative of paying the assessed value of the goods; may be enforced by one or more of the following
means:
(a) writ of delivery to recover the goods without alternative provision for recovery of the assessed value
thereof (writ of specific delivery)

Writ of possession
Judgments or orders for the recovery of Land are enforced in the High Court by a writ of possession RSC
order 45 rule 3(1)

A writ of possession to enforce a judgment or order for the giving of possession of any Land shall not be
issued, without leave of the Court except where the judgment or order was given or made in a mortgage
action to which order 88 applies.

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 INTERPLEADER
Introduction
Where a person who has levied under a writ of execution is in possession of property or its proceeds of sale
and he is or expects to be sued in respect thereof by two or more persons making adverse claims thereto,
he may apply to the court for an order requiring the claimants to litigate their differences and to abide by the
Court’s final order in respect thereof.195 He is thereafter safeguarded by being able to act in respect of the
property or its proceeds of sale consistently with or as may be directed by the Court’s final order. In the
circumstances, he is said to apply to the Court for relief by way of interpleader.

Relief in the High Court is available in two classes of case known traditionally as stakeholders and sheriffs
interpleader196 as demonstrated below.

When Relief is Available

Relief by interpleader may be granted:
(i) Where the person seeking relief 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 making adverse claims thereto; or
(ii) 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.197

Matters to be Proved by the Applicant

The applicant must satisfy the Court or a Judge by affidavit or otherwise-
(i) That the applicant claims no interest in the subject-matter in dispute, other than for charges or costs; and
(ii) That the applicant does not collude with any of the claimants; and
(iii) 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.198

195 Halsbury’s Laws of England, (Vol 37. 4th Ed. Reissue) Page 443, Paragraph 1417.
196 Halsbury’s Laws of England, (Vol 37. 4th Ed. Reissue) Page 444, Paragraph 1419.
197 Order 43 rule 1 of the High Court Rules Chapter 27 of the Laws of Zambia
198 Order 43 rule 2 of the High Court Rules Chapter 27 of the Laws of Zambia

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 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.

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.

In order for conduct to constitute a criminal contempt at common law, the actus reus and mens rea must both
be present. In broad terms, the actus reus of criminal contempt of court is conduct which interferes with or
impedes the due administration of justice. This may well be an act or words. The case of Elias Kundiona v
The People (1993-1994) ZLR 59;: Criminal contempt - “Contempts of this kind are punished not for the
purpose of protecting either a court as a whole, or the individual judges of the court, from a reputation of the
attack but for protecting the public and especially those who either voluntarily or by compulsion are subject
to the jurisdiction of the court from the mischief they will incur if the authority of the Tribunal is undermined or
impaired. It would not be a legitimate object of punishment for an aggrieved judge to seek solely to vindicate
his personal honour or sate his wrath. It is a public which must be protected against loss of confidence and
respect for the courts engendered by the acts calculated to undermine the authority or to expose the courts
to contempt.” In the Sebastian Zulu case, contempt in the face of the court – the judge did not try him
there and then. The SCZ said that the moment the judge put Sebastian Zulu in the dock he must have tried
him, convicted, and sentenced him. You don’t adjourn because it’s in the face of the court so must have
been instantaneous. Because it happens instantly, it is tried instantly and the decision is meted out
instantly.

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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 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

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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, you
should also have an affidavit verifying facts relied upon in the statement. You normally move the judge in
Chambers.

Once leave has been granted, you then file a Notice of Motion which will then be served along with the
Affidavit and a statement on the alleged contemnor. Service must be personal. On the alleged contemnor.
Service must be personal and make sure that you serve eight clear days before the date set for the hearing
of the motion. Hearing of the motion for committal is in open court. Someone who is like a prosecutor will
lead evidence of how you disobeyed the orders of the court.
 First that has to be proved is service of the underlying order which is alleged to be violated on the
alleged contemnor.
 Secondly, there has to be proof that the motion itself for contempt/committal was equally personally
served on the alleged contemnor.

No order for committal be made by the court without proof of personal service of the underlying order
disobedience of which is said to constitute the contempt. If the order was directed to a group of people and
maybe a company and you wish to cite a particular individual, there has to be proof that the underlying order
which is disregarded was served personally on the particular person; or on each person being cited. There
are a few exceptions when the court might presume service as contained in the white book. The order itself
must have a penal notice on the face of the order not inside.

When moving against an individual from a group or an individual officer from a company, the notice of motion
and the accompanying statement must specifically refer to the individual whom you’re citing; identifying the
individual and the acts of the individual who is being cited.

At the hearing, which as a rule is held in open court save for some exceptions: Where it appears to the court
that in the interests of the administration of justice or for reasons of national security the hearing for contempt
should be in camera. At the hearing for the application for contempt, one cannot bring grounds upon which

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committal is sought other than the ones indicated in the statement, those are the sole grounds that ought to
be relied on.

Question: Where a practitioner is with a Judge, say at the Judge’s home seeking maybe an injunction and
finds the judge drunk then insults the judge. Given that it is just the two of them and no one else is privy, can
the judge the next day issue summons and cite the practitioner for contempt in the face of the court?

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;
NB: Both positive and negative orders can be enforced by a writ of sequestration so that any judgment or
order that requires a person to do an act within a specified time just like any judgment or order that requires
a person to abstain from doing an act can be enforced by a writ of sequestration!

For positive orders, the order must specify the time within which that act ought to be done. Just like any other
order where disobedience may be alleged, the order must be personally served on the alleged contemnor or
the person whose property is sought to be sequestrated.

An application for a writ of sequestration must be made to a judge on a Notice of Motion in which you state
the grounds in support or upon which the application is founded, supported by an Affidavit. The Motion and
the Affidavit must be served personally on the person against whose property it is sought to issue the writ
and the application will be heard in open court.

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Where a person whose property has been sequestrated has paid his contempt, an order may be obtained on
motion or summons for discharge of the sequestration and directing the sequestrator to withdraw from
possession and to pass their final account.

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THE DEBTORS ACT
Order 45/1/1e of the RSC read with Order 45/5 RSC which will show that committal as a means of
enforcement of money judgment is permissible. There is also the Debtors Act in addition to this which
provides an independent power to commit a person who wilfully refuses to pay a judgment debt when he has
the means to do so. The power of committal given under the Debtors Act is for default in payment of any debt
which is due in pursuance of any judgment or order and where there has been a wilful refusal to pay. Section
4 of the Debtors Act permits the court to commit to prison for a term not exceeding six (6) weeks or until
payment any person who makes default in payment of the judgment debt or instalments due to him following
a judgment.

Stoneor v Fowle 1888 13 Appeal case p20 – emphasises that to invoke those provisions there must be
evidence of a wilful default and that the person has/had the means. Also read section 10 of the debtors Act
which relates to arresting an absconding debtor who wants to leave the country. Note the limitations on
imprisonment and the circumstances under which you can implore that provision. Section 11 of the DA deals
with arresting a judgment debtor about to leave Zambia. Understand when it is appropriate to invoke this
provision and what you need to establish by way of evidence on oath before the judge. The powers under
the DA are exercisable by the High and Sub Courts. There may be circumstances when you can employ
these provisions in the Constitutional Court too seeing that it enjoys inherent jurisdiction.

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ARBITRATION
This is a form of alternative dispute resolution (ADR) mechanism. For commercial disputes worldwide, they
are now being resolved through ADR as means to avoid litigation. Arbitration is a process used by the
agreement of parties to resolve a dispute. In arbitration, disputes are resolved by a person(s) acting in a
judicial manner in private rather than by a national court of law that would ordinarily have jurisdiction but for
the agreement of the parties to exclude it (Halsbury’s Laws of England).

Arbitration Agreement
An arbitration agreement is an agreement by the parties to submit to arbitration, all or certain disputes which
have arisen, or which may arise between them in respect of a defined legal relationship whether contractual
or not. An arbitration agreement may be in the form of an arbitration clause in the contract or in the form of
a separate agreement. The most critical aspect of an arbitration agreement is that the agreement must be in
writing, signed by both parties. An agreement is in writing if it is contained in a document signed by the
parties, or in an exchange of letters or other means of telecommunication which provide a record of the
agreement, or in exchange of statements of claim and defence in which the existence of an agreement is
alleged by one party. Read section 9(2) of the Arbitration Act and section 4 of the Statute of Fraud which
speak to how you prove the existence of a contract.

An arbitral tribunal may rule on its own jurisdiction including objections with respect to the existence or the
validity of an arbitration agreement on request of a party to the arbitral proceedings. It has power to rule on
whether it has jurisdiction or not and on whether the arbitral agreement is valid or not, enforceable, or not
enforceable. Article 16(1) of the First Schedule to the Arbitration Act. An arbitration clause which forms part
of a contract shall be treated as agreement independent of the other terms of the contract such that even if
the arbitral tribunal found that the contract itself which houses the arbitration clause is invalid that does not
invalidate the arbitration agreement.

For arbitration, at inception at a preliminary meeting, parties will agree on procedure to be followed by the
Arbitral Tribunal during the proceedings. The parties will agree for instance, on the rules to govern the
proceedings. They could for example, agree that the RSC of England on 1965 will be applicable to the arbitral
proceedings, or they could exclude them. They will agree on when to exchange what we call pleadings in the

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normal judicial processes, and the rest of the steps to be taken up to the hearing. Whether the tribunal should
follow the strict rules of evidence or not; issues relating to admissibility of evidence.

After the preliminary meeting the Arbitrator will issue Order for Directions, outlining everything that needs to
happen arising from the agreement and preliminary meeting. The claimant will file the statement of claim with
all the documents in support of his claim, serve them on the defendant. The defendant will file a reply with all
documents that they will rely on. After that we have witness statements. The process is shortened with no
requirements for inspection of documents for example. If you wish to raise issues of authenticity of documents
for example, that will be dealt with at the hearing.

Once the hearing takes place, the decision of the Arbitral Tribunal is referred to as an award, which is final
and binding on both parties. Before the final hearing, during the process leading to the hearing, if there is any
decision made by the arbitrator, it is called an interim award. During the process before the final hearing,
although it is a summary process, a party will be within their right to amend their statement of claim or their
defence unless the arbitral tribunal considers it inappropriate having regard to delay in making the application.
Every document that the tribunal is going to refer to and rely on in making its decision, whether from an expert
witness must be served on the other party, including those documents that the tribunal source on their own
if they will affect the award.

In arbitral proceedings, there are equally procedures where there is a default by any of the parties found in
section 15 of the Arbitration Act No 19 of 2015.
a) Where the claimant fails to serve or communicate his statement of claim, the arbitral tribunal shall
terminate the proceedings.
b) Secondly, where the respondent fails to communicate his statement of defence, the arbitral tribunal
shall continue the proceedings without treating such failure in itself as an admission of the claimant’s
allegations.
c) If any party fails to appear at a hearing or to produce documentary evidence, the tribunal may
continue the proceedings and make the award on the evidence that is before it.
d) If the claimant fails to prosecute the claim within a reasonable time, the arbitral tribunal may make
an award dismissing the claim or may give direction with or without conditions for the speedy
determination of the claim.

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Advantages of Arbitration
1. Confidentiality – enacted in section 27(1) of the Arbitration Act. You cannot publicise proceedings or
awards arising from Arbitration.
2. Rights of the parties to select their forum rather than to be subjected to litigation in the other party’s
national court. (Particularly important for international commercial transactions).
3. The parties have a right to select their adjudicators for their dispute. A clause that provides for either
a sole arbitrator or each party to appoint one and the two so appointed appoint the third arbitrator,
allows parties to exercise such right and pick the expertise in the field relating to the dispute. Allows
for impartiality and integrity.
4. The parties right to the choice of law for disputes.
5. The ease of enforcement of the arbitral award in other jurisdictions. Arbitral awards are more easily
enforceable anywhere than court judgments which are subject to restrictions.
6. Arbitration provides a quicker and speedy method of resolving disputes.

There are however, matters which are not subject to arbitration. Matters or contracts which are contrary to
public policy can never be subjected to arbitration. There is no arbitration for criminal matters, matrimonial
matters, and matters relating to paternity, as provided in section 6 of the Arbitration Act.

UNCITRAL Model Law

The idea was to achieve some level of uniformity. Section 8 of the Arbitration Act expressly provides that
where the place of arbitration is Zambia, the UNCITRAL law will apply. Section 10 of the Arbitration Act
provides that a court before which legal proceedings are brought in a matter which is a subject of an arbitration
agreement shall if one of the parties raises it stay those proceedings and refer the matter to Arbitration. The
court can also stay at its own instance. Where the court is moved by a party, an application to stay the
proceedings shall be made by Summons. If the proceedings are before the judge, the application shall made
to the judge himself, or fi not yet allocated to the Registrar or Deputy Registrar. The Summons must be
supported by an Affidavit which exhibits the Arbitration Agreement and state the circumstances for seeking
an order for stay proceedings and must give particulars of pending arbitration proceedings, if any. The name
of the arbitrator must be stated where the arbitration proceedings have commenced, or where the arbitration
proceedings have not yet commenced state the names of the proposed arbitration. While arbitral proceedings
are going on, or even before they have commenced, a party to those arbitral proceedings could go to the

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high court to seek interim measure of protection and a court may grant such measures upon such request
and the kind of orders which the court can give are stated in section 11 of the Arbitration Act, e.g. interim
injunction, custody, sale etc. Section 11 will also show instances when the court will not grant a party an
interim order of injunction.

NB to know is that an application for interim measure of protection is made to the judge of the High Court by
originating summons supported by an affidavit. Section 9 of the Act and under the Arbitration Rules S.I No.
75 of 2001 outlines what the affidavit must speak to and exhibit in terms of documents. It should exhibit:
 A copy of the Arbitration agreement, stating the nature of the interim measure being sought.
 It must state or give the particulars of the subject matter of the dispute in respect of which the interim
measure is sought.
 It must give particulars of any person in possession of the subject matter of the dispute together with
the person’s address.
 Must also give particulars of any arbitral proceedings which are pending, exhibiting a ruling, or finding
of fact made in the pending arbitral proceedings.
 It must give an undertaking to pay damages in the case the court or the arbitrator decides to
discharge the interim measure or to order the payment of damages.
 The affidavit must state or give any other facts that may be relevant to the application.
Where the application for an interim measure is urgent the application can be made ex parte.

Enforcement and Recognition of Awards

An arbitral award irrespective of the country in which it was made shall be recognised as binding and upon
application in writing to the competent court shall be enforced. Once an arbitral award has been registered
irrespective of its origin, that award is enforceable like any judgment of the court. However, there are grounds
upon which recognition or enforcement may be refused. Section 19 of the Arbitration Act sets out various
grounds. The same grounds upon which enforcement or recognition may be declined are more or less the
same grounds upon which one can make an application to set aside an award under section 17. These
grounds will also feature in Rule 23 of the Arbitration Court Proceedings Rules of 2001.

How do you have a foreign award enforced in Zambia? You apply by originating summons accompanied with
an affidavit. You exhibit the original award, or authenticated, or a certified copy. Assuming that the award is

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from say France and is in French, you must also have a translation version. Must indicate the amount claimed
in the award. Must also indicate the full names, title, and business of the respondent to the award. Rule 16
provides all the other details which you must have for this. The rules require that where the award is in a
foreign currency, you must also indicate the kwacha amount calculated at the average exchange rate
prevailing on the date of enforcement of the award.

In terms of procedure, once your ex parte application has been heard and granted, you have to draw up an
order for the Registrar to sign. The rules do not require the order to be served on the judgment debtor, but it
must also state the period, not exceeding 90 days from the date of receipt of the award by the applicant within
which an application may be made to set aside the registration.

Once you have your award registered, it will have a provision stating that within this period, an application to
set it aside may be made by the judgment debtor. Until that period expires, you cannot take any action in
terms of enforcement of the award.

Rule 19 requires the applicant to file in court a written notice of the registration of the award to be served on
the judgement debtor. The rules require personal service. If the judgment debtor is a resident outside
jurisdiction, the same rules for service out of jurisdiction will apply. The rule also provides everything that
must be stated in the notice. E.g. the full particulars of the award, registered and must also indicate the date
of registration, must indicate within what time frame after service of the notice the judgment debtor is allowed
to launch an application to set aside the award.

After the notice is served, execution cannot issue until the period stated in the notice has expired. Execution
is done in the usual manner – writ of fifa to the sheriff, etc. and its effect is the same as a judgment of a court.
[Part 10 of the Rules doesn’t seem to deal with time lines within which certain things have to be done except
that summons are to be served within 7 clear days from the return day.]

Note that the practice is that in most cases for locally made awards, there is a tendency to just enter them in
the register without going through the registration process which is contrary to the rules. Registration of a
local award is K56 in the Principal Registry. Every jurisdiction provides for an Arbitration Institute which is
recognised, such as the Charted Institute of Arbitration here in Zambia.

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 MEDIATION
Mediation is a form of non-binding resolution involving a neutral or independent third party who assists the
disputing parties to reach a mutually agreeable solution.

What is conciliation? A conciliator listens to both parties, forms his own opinion, and pushes it to the parties
to get to an agreement. Conciliation comes in mainly during international agreements.
Advantages of mediation
 Speed
 Cost
 Preserving relationships
 Custom designed solutions
 Flexible and informal
 Enforceability
 Everything that is discussed during mediation is privileged – such record cannot be used in litigation.
The mediator leaves no record on the file. This is intended to free parties in engaging.
 Confidentiality

Court annexed mediation

One of the requirements is that a judge can refer a matter to mediation provided that matter is not one which
relates to highly contentious matters or a constitutional issue. The matter must also have been set down for
trial.
Why does it normally fail? [Some of the pitfalls]
 Lawyers usually shun the process
 Non-involvement of the clients in the process
 Sometimes judges refer the matter prematurely – it should be after the matter has been set down for
trial
 Inability by the parties who are referring the matter to mediation to assess the matter itself
At the inception meeting with the mediator, there is a statement of understanding that needs to be signed
where the mediator explains his role stating that s/he is not going to sit in an adjudicative position but merely
facilitates for the parties to decide.

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Where a settlement has been reached, at the end of the mediation session, the mediator prepares a
mediation settlement form [prescribed form] which is signed by the parties and the mediator himself, and
which to all intents and purposes is treated as a judgement because it has the same force and effect. This
form is then supposed to be registered by the successful party in the principal, commercial registry or
subordinate court as the case might be – wherever the matter originated from. In the event that a party to the
settlement defaulted, then the other party can enforce that settlement through the normal process of issuing
a writ of fifa. Mediation fee is K250.

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 ASSESSMENT OF DAMAGES
What is Assessment of damages? It may be defined as a determination of the rate or amount of money
ordered to be paid to a person as compensation for loss or injury by a court or Tribunal (Black’s Law
Dictionary). A judgment for damages to be assessed is a final judgment as regards the question of liability,
but it’s interlocutory as to the quantum of damages to be paid. This judgment may arise in different
circumstances:
 It could arise as a result of some default in proceedings;
 as a result of a final judgment from a hearing by a court or tribunal;
 as a result of an admission;
 As a result of an order being made by a court.

The striking feature about this judgment is that the damages are unliquidated. These damages may have
been ordered for say, breach of contract, or from a tort such as negligence, a nuisance, etc. An assessment
process will have to follow where such a holding has been made by a court to determine the quantum or
value of goods where it for example relates to breach of contract due to maybe goods being damaged; in
negligence it could arise from things to do with personal injury cases.

How do we assess damages?

An application for assessment of damages is made by Notice and normally entitled Notice of Appointment
for Assessment of Damages, or you may have it by Summons titled Summons for Assessment of Damages,
supported by an Affidavit which deposes to the evidence in support of the application. Where judgment is
given for damages to be assessed, the trial court may also order that the action shall proceed to trial before
the judge presiding over the matter and in which case he could give directions as to how the trial will be
conducted. The jurisdiction that the Deputy/Registrar exercises in carrying out assessment of damages is the
same as that of the judge. The judge who tried the matter could after judgment has been delivered, instead
of referring the matter to the DR to conduct the assessment give directions of how the assessment will be
conducted before him/her. In most cases, the practice is referral to the DR for assessment.

The assessment of damages according to the Rules is supposed to be conducted in open court because it
is a continuation of the trial process. However, in practice it is usually conducted in Chambers. When you go
for assessment, you have to call witnesses who will take the stand. We follow the same procedure. At the

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end, submissions will have to be filed which specifically address the question of quantum. If you are not
happy with the decision of the Deputy Registrar, the appeal lies to the Court of Appeal.

It is a condition precedent to assessment of damages that before the date fixed for hearing of the application,
the application must be served on the other party at least 7 days before the date appointed for the hearing.
This is whether or not that party appeared in the main action. Unless order – ‘if you failed to do this within
this period, this will happen’. If the judgment arises from such an order, when you take out summons or notice
for assessment, they will have to be served on the other party. If for instance the defendant is resident out of
jurisdiction, for purposes of service you will have to get leave to serve assessment process on the defendant
out of jurisdiction even if you did seek such leave for serving originating process out of jurisdiction.

The hearing of an assessment of damages constitutes a part or the continuation of the trial of the action and
it therefore takes place in open court, and this is so whether it takes place in chambers. Whether the
defendant is present during the assessment process or not, the plaintiff must prove the damages claimed in
the same way as any other fact, namely, by the evidence of the witnesses examined orally or by affidavit.
The proceedings for assessment of damages will follow the same course as the trial of the action. Look at
the explanatory notes in Order 37/6/4 of the RSC. Also look at the case of Gladys Mahlangu Nasilele v
Mundia Nasilele 2012 1 ZLR 455 which quotes referring to a decision by Sakala J “a decision, order or
direction made by a DR on a matter referred to him by a judge is made on behalf of the judge and hence it is
the decision of the judge who referred the matter to him.” Also refer to Practice Direction No. 1 of 1979 which
directs that all appeals from assessment of damages by DR shall lie directly to the Supreme Court. Also look
at the case of Mohamad and Alantara Transport Ltd v Safeli Chungu ZLR 4; Barclays Bank Zambia Ltd v
Zambia Union of Financial Allied Workers 2007 ZLR 69 – the issue was that execution can only be levied on
an amount which has been assessed or where there has been agreement of the parties which has been
incorporated into a consent judgment. Read Philip Muhango v Dorothy Ngulube 1983 ZLR 61.

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 JUDICIAL REVIEW
The implications of the constitution in terms of the court’s power to judicial review. Whenever there are
changes in the constitution invariably means there are changes in public law. The amendment of the
Constitution has made significant changes.

How do we ensure that the people we have given power to do a number of things actually use that power for
the purpose that it was given? Who is responsible for this? To police the other institutions of government?
Judicial review is at the heart of the rule of law. It is a mechanism that is designed to ensure that those vested
with public functions operate within the confines of the law. It is the power that is vested in the courts to
ensure that the court interrogates the lawfulness or unlawfulness of any decision. Failure or non-
compliance with the law also stems from inaction. It can also arise where a public officer acts beyond their
power.

Before the amendment to the Constitution of 1996, the scope of judicial review was very wide in comparison
to judicial review in the UK. Judicial review in the UK talks about the courts controlling the in/actions of the
Executive branch of government only. The in/actions of the Legislative arm of government were beyond
review by the courts because their parliament can do no wrong, it is supreme. In our case, parliament is not
supreme and is subject to the Constitution, so the scope is very wide. The courts have the responsibility of
ensuring that both the Executive and Legislative arms of government act within the law.

Before 2016, one could go to court and apply for review of a decision made by either an institution in the
executive or legislature, National Assembly, e.g. The People v Harry Mwaanga Nkumbula Ex Parte the
Speaker of the National Assembly – description of who the leader of a political party. A member of African
National Congress had left to join UNIP therefore his seat to be declared vacant and the speaker refused
saying he didn’t recognise Nkumbula as leader of the party. Nkumbula won and mandamus was issued
against the speaker; Fredrick Chiluba v AG – matter went before the National Assembly for the removal of
his immunity. Argument was that he needed to be heard before his immunity could be removed. An order of
cessiorari was not granted; Akashambatwa Mbikusita Lewanika – He had taken part in the proceedings in
the national assembly which resulted in certain individuals being found guilty of contempt of parliament and
were sentenced to jail. Lewankia issued a statement disassociating himself from that decision. Disciplinary
proceedings were initiated against him and ordered that he should lose his seat. The court held that the

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circumstances in which you can lose your seat is prescribed by the constitution which power does not pass
on to the national assembly.

[Christine Mulundika case where the court was moved on the strength of article 28 which provides for a
petition and a constitutional reference. The issue was that the provisions of the Public Order Act violate the
Constitution. Article 28 of the Constitution deals with the enforcement of fundamental rights. If you allege that
any of your rights under the BOR has been or is likely to be violated, you have the right to move the court by
way of petition.]

However, when moving the court for a constitutional provision which is outside the BOR, article 28, for
example article 79, where the issue was that what was being proposed to be done exceeded the power of
parliament in article 79. The ground was illegality as what was being attempted to be done was not an
amendment but introduction of a new constitution all together.

The amendment to the constitution has created an exclusive reservation to public institutions exercising
power which has its source as an act of parliament, i.e. institutions under the Executive arm of government.
All matters to do with the constitution are exclusively reserved for the Constitutional Court and its rules provide
for the procedure on how to move the court where there is an allegation of breach. The position is that BOR
is under the High Court while the rest is what is under the exclusive jurisdiction of the Con court.

Order 53 of the RSC governs the procedure for judicial review applications. Starting point for procedure is
the case of Dean Mungómba, Bwalya Ngándu, ACC v Peter Machungwa, Katele kalumba and Golden
Mandandi 1997/98. This case tells us why we have to refer to the white book. The defendants were ministers
in Chiluba govt and were involved in some act of corruption. They went before the Parliamentary Ministerial
Tribunal constituted to investigate the alleged breach. They were found guilty except for Kalumba and moved
the court to quash that decision. Whilst in court some individuals applied to be joined to be parties. Upon
being joined they applied for Kalumba to be joined pursuant to the provisions of the High Court Act saying
that Katele is likely to be affected by the outcome. The High Court refused, and they went on appeal. The
SCZ said there is no provision under Order 53 for a party to be joined and that in matters of procedure in
relation to JR we have to follow the provisions of Order 53 exclusively and strictly. Further, in as far as

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procedure is concerned, our rules in Zambia have no application we have to strictly follow Order 53 because
the HCR do not say anything about judicial review, therefore, a lacuna.

[Side Comment on New Plast Industries case: where a statute makes provision for a mechanism to be resolve
disputes such as a statutory mechanism of appeal e.g. LDRA which makes express provision for High Court
by way of appeal against the decision of a Registrar. This is sound because the difference is the route, the
matter will still end up in the HC and the HC will still have the power to look into the decision. On appeal the
court can reverse/quash the decision. By way of JR, the remedy available under Order 53 is e.g. cessorari
which has the effect of quashing the decision as though it was never made; or direct the decision maker to
make the correct decision under an order of mandamus.] Judicial review is thus only available where there
is no mechanism in statute providing you a route to get to the High Court to interrogate that decision.

Before you start an application for judicial review you must answer one question: do you have locus standii
to make that application? Do you have the right to move the court? Order 53/3/1 and 7 says no application
for JR shall be made unless leave of the court has been obtained in accordance with these rules; the court
shall not grant leave unless it considers that the applicant has sufficient interest in the matter to which the
application relates. You cannot go to court for JR as a matter of right, you need leave of court. One of the
considerations for granting leave is sufficient interest in the matter. Leave is necessary because it is used as
a sieving mechanism to balance the interests of public institutions. Leave is necessary because it is used as
a sieving mechanism to balance the interests of public institutions and other interests in order to prevent
every jim and jack from coming to court. You have to demonstrate to the court that you have an arguable
case (Derrick Chitala v The People) by making a paper application which is done ex parte, disclosing certain
serious issues that are worth interrogating further. Stora Mbuzi v The AG Judgment No. 10 of 1993 (reported
in 1993 Volume of Commonwelath Report) – Nakatindi and Mwaanga were appointed to Chiluba’s cabinet.
AT the time of their appointment there were allegations that they were involved in mandrax. Stora challenged
these appointed bases on article 4 of the Constitution arguing that the appointments amounted to the
President not exercising his functions with dignity and leadership. The issue of standing came up and a bench
of 5 judges sat with majority saying, need to balance of interests: desirability of encouraging citizens
participating in public law and desirability of encouraging every jim and jack.

Leave is not guaranteed. What documents do you prepare in order to get leave of the court?

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 1. Notice of Application for JR – state your names, the decision which is the subject of JR, indicate
the person or institution whose decision is the subject of JR; the facts which form the basis of JR;
grounds for JR, state the remedies being sought; name and address of solicitors if any, address for
service. You have to include as much information as you deem necessary in order to persuade the
court to grant you leave. You then argue the law, whether there was illegality, miscellaneous factors
of any interim relief sought.
2. Affidavit verifying facts – state that I verify the facts stated in paragraph…of the notice of
application are correct. So, you basically swear the correctness of the facts in the Notice.

After this, you then ask to be heard on the application for leave. Under the rules, when leave is refused you
renew it before a higher court, but in Derrick Chitala:
“Under the Supreme Court of Zambia Act, this is an appeal against the decision of a High Court Judge
refusing to grant leave to bring judicial review proceedings. Under the Rules of the Supreme Court of England
which apply to supply and cassus omissus in our own rules of practice and procedure, this would be a renewal
of the application for leave to the appellate court. The issue was whether the learned judge below was wrong
to refuse to grant leave and whether we should now do so in the particular circumstances of this case.”
This has not been resolved.

In the same case, the court said “The purpose of the requirement of leave is:
a) to eliminate at an early stage any applications which are either frivolous, vexatious or hopeless and
b) to ensure that an applicant is only allowed to proceed to a substantive hearing if the court is satisfied
that there is a case fit for further consideration.
The requirement that leave must be obtained is designed to “prevent the time of the court being wasted by
busybodies with misguided or trivial complaints of administrative error, and to remove the uncertainty in which
public officers and authorities might be left as to whether they could safely proceed with administrative action
while proceedings for judicial review of it were actually pending even though misconceived”.

The court agreed with the decision in In R. v Secretary of State for the Home Department, ex p. Rukshanda
Begum (1990) c.o.d.107, where the court of Appeal held that the test to be applied in deciding whether to
grant leave to move for judicial review is whether the judge is satisfied that there is a case fit for further
investigation at a full inter-partes hearing of a substantive application for judicial review (see par 53/1-

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14/34). If, on considering the papers, the Judge cannot tell whether there is or not, an arguable case, he
should invite the putative respondent to attend the hearing of the leave application and make representations
on the question whether leave should be granted.”

What determines an application for judicial review? The relief sought – Order 53/1:
“An application for -
(a) an order of mandamus, prohibition, or certiorari, or
(b) an injunction under section 30 of the Act (which does not apply) restraining a person from acting
in any office in which he is not entitled to act, shall be made by way of an application for judicial
review in accordance with the provisions of this Order.”

There are six remedies available under judicial review: Mandamus, prohibition, certiorari, declaration,
injunction, and damages. All these remedies are now available in one application. If you are asking for these
remedies outside the constitution, then you have to do it by way of judicial review.

“An application for leave to apply for judicial review shall be made promptly and in any event within three
months from the date when grounds for the application first arose unless the Court considers that there is
good reason for extending the period within which the application shall be made.” You have to make your
application promptly, not more than three months from when the grounds for application first arose. In
exceptional circumstances the court may grant leave outside time, but you have to give reasons why.

Once leave has been granted, you draw up an Order for leave and file before court for signing. You then
lodge the originating summons or originating notice of motion which is sealed by the court, whichever is
applicable. This is the instrument that starts the proceeding for judicial review. You then serve the motion or
summons, the notice, affidavit and the order on the other party. If the other party is opposing, s/he will file an
Affidavit in Opposition.

In judicial review, you have the right to obtain an interim relief which can be in the form of a stay or an
injunction under Order 53/3/10:
(10) Where leave to apply for judicial review is granted, then -

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(a) if the relief sought is an order of prohibition or certiorari and the Court so directs, the grant shall operate
as a stay of the proceedings to which the application relates until the determination of the application or
until the Court otherwise orders;
(b) if any other relief is sought, the Court may at any time grant in the proceedings such interim relief as could
be granted in an action begun by writ.

Wynter Kabimba v LCC and AG – whether an injunction was available against the AG in view of section 16
of the State Proceedings Act. Court held that an injunction may not be available, but a stay of the proceedings
may be granted.

Once both parties have filed in their documents, you then set the matter down to be heard. Evidence in
judicial review proceedings is invariably on paper because you don’t really fight on facts but on the
interpretation of the facts in relation to the law. If you lose, you have the right of appeal to the Court of Appeal.
Read Counsel of the Civil Service Unions & Others v Minister of the Civil Service 1983 All ER 939 –
specifically the opinion of Lord Dipplock “JR now regulated by order 53 provides the means by which judicial
control of admin action is exercised. The subject matter of every JR is a decision made by some person or
body of person called decision maker or refusal by him to make a decision.”

“To qualify as a subject for JR, the decision must have consequences which affect some person or body of
person other than the decision maker although it may affect him too. It must affect such person either by
altering rights or obligations of that person…”

Parties
The parties of J.R are not the same as in other proceedings, you simply state for example: The People v
Inspector General of Police Ex-Parte James Chimbwi.

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 COURT OF APPEAL
The Court of Appeal is established under article 130 of the Constitution and the Constitution stipulates its
jurisdiction. Its jurisdiction is to hear appeals from the High Court, from other courts, except for matters under
the exclusive jurisdiction of the Constitutional Court. It hears appeals from quasi-judicial bodies except
appeals from the Local Government Elections Tribunal [article 131 of the Constitution].

The CoA is constituted by an uneven number of not less than three judges except when it is hearing an
interlocutory matter. When it is hearing an interlocutory matter, only one judge sits and would constitute the
court at that stage. The maximum is prescribed under the Act.

Practice and Procedure

The jurisdiction given by the Constitution is exercised in the manner provided by the Court of Appeal Act and
Rules. However, where the CoA Act and Rules do not provide for a particular point of practice or procedure,
or where there is lacuna, the practice of the court in relation to civil matters is in accordance with the Rules
of Supreme Court of England of 1965, 1999 edition (white book) and also the Law and Practice in the Court
of Appeal in England in force up to 31st December 1999. In relation to criminal matters, where there is default,
the practice and procedure will be as nearly as may be in accordance with the Law and Practice for the time
being, observed in the Court of Appeal of England. Order 1/1 of the Court of Appeal Rules.

It’s not every decision that you can appeal from the HC to the CoA, there are certain decisions that are
unappealable:
1. Some of the restrictions can be found in section 23 of the CoA Act which provides that an appeal shall
not lie from an order allowing for an extension of time for appealing from a judgment. This means that if
for instance you had a judgement that you were unhappy with and were required to appeal within a
certain number of days and you delayed, but then got an order for extension of time for filling the appeal.
The other party cannot appeal against the order which gave you an extension of time.
2. An appeal shall not lie from an order of a judgment of a court giving unconditional leave to defend an
action.
3. An appeal shall not lie from a judgment given by the HC in the exercise of its appellate or review
jurisdiction without the leave of the HC or if that has been refused, without the leave of a judge of a Court
of Appeal.

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4. No appeal shall lie from an order made with the consent of the parties or from an order with regards to
costs only. You would need leave of the HC and where such leave has been refused, you’ll need leave
of the Court of Appeal in order to appeal against such an order.
5. You cannot appeal against an order made in Chambers or from an interlocutory order/judgment of the
HC, until you first obtain leave from the HC, or where it is refused, leave from the Court of Appeal.
However, there are some exceptions:
i. If the matter involves the liberty of the subject or the custody of an infant;
ii. If the decision is that of an injunction which has been granted or refused, or the appointment of
a Receiver;
iii. In a case of a decision determining the claim of a creditor or the liability of any contributory
Director or other officer under the Companies Act;
iv. In a case of a decree nisi in a Matrimonial cause judgment or order in admiralty action
determining liability or, in the case of an order on a special case stated under any law relating
to arbitration;
v. From an order absolute for the dissolution or nullity of marriage made by a judge of the HC in
favour of a party who having had time and opportunity to appeal from the decree nisi on which
the order was founded has not appealed from that decree.

Leave to Appeal in the Court of Appeal

The HC may grant or refuse to grant leave to appeal to the Court of Appeal and an application for leave to
appeal is made by Summons stating the grounds of the application and if necessary, it may be supported
by an Affidavit. [Order 10/4/1/3 of the Court of Appeal Rules].

Where leave to appeal to the court of appeal has been refused by the HC, you may renew the application
before a single judge of the Court of Appeal. The content will be the same, stating the grounds of the
application and acknowledge the fact that you had made the application in the HC and it was declined. The
renewal of the application is basically a fresh application, it is not an appeal! If the single judge of the CoA
also declines your application for leave to appeal, you then have to make the application to the court by
Motion or indeed summons stating the grounds of the application accompanied by the Order refusing leave
and supported by an Affidavit.

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The Notice of Appeal which is referred to as a Notice of Intention to Appeal should state clearly whether the
appeal is against the whole or part only of the judgment. The notice of Appeal ought to be filed together with
the Memorandum of Appeal within 30 days after the Judgment appealed against and you need to file 21
hard copies of each, the Notice of Appeal and the Memorandum of Appeal. Once they have been filed, within
14 days you must serve on all parties affected by the appeal.

A party who has been served with a Notice of Appeal and who has become a respondent to the intended
appeal must within 7 days after service of him of the Notice file with the Registrar and serve on the appellant
the notice of his full address. A party who fails to file a Notice of Address for service after he has been served
with a Notice of Intention to Appeal, it shall not be necessary to serve on that party copy of the record of
appeal or any other proceedings in the appeal including the notice of hearing. A notice of change of address
should also be served on the appellant.

If the respondent who has been served with a notice of appeal intends upon the hearing of that appeal to
contend that the judgment of the court a quo should be varied, for whatever reason, that respondent may
after receiving the notice of appeal but not more than 7 days after he has been served with the record of
appeal, give Notice of a Cross Appeal in which he specifies the grounds of appeal. The respondent prepares
and files 21 copies of that Cross Appeal and then serves on the Appellant.

Extension of Time
The court may for sufficient reason extend the time for:
a. Making an application including an application for leave to appeal – e.g. rules require that you make
an application for leave to appeal in 30 days but due to a delay such as receipt of instructions after
the 30 days have lapsed, you make an application for leave to extend time within which the appeal
can be made;
b. Bringing an appeal or;
c. The court may for sufficient reason extend the time for taking any step in or in connection with an
appeal – Order 13/3/1 of the CoA Rules.
An application for extension of time in relation to a judgment or the date of expiration of the time within which
an application ought to be made shall be filed with the registry within 21 days of the judgment or such time

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within which the application ought to have been made unless leave of court is obtained to file the application
out of time – Order 13/3/2.

Record of Appeal
Once all your documents (Notice of Intention to Appeal, Memorandum of Appeal) have been filed, the next
thing to do is to lodge the appeal that is, filing the record of appeal. The appellant shall within 60 days of filing
the notice of appeal lodge the appeal by filing in the registry 21 copies of the record of Appeal together with
the Heads of Argument. The rules provide that you file an electronic version of both the Record and Notice
of Appeal although this is not being implemented. You are also required to pay the prescribed fees in respect
of the appeal, and to pay into court security for costs of the appeal.

Also, important to note is that, if the appeal is not lodged within the 60 days requirement, the respondent will
be within his or her right to apply to the court for the appeal to be dismissed for want of prosecution – Order
10/7.

A memorandum of appeal shall set forth concisely and under distinct heads without argument or narrative
the grounds of objection to the judgment appealed against and shall specify the points of law or fact which
are alleged to have been wrongly decided and such grounds to be numbered consecutively. You simply
identify what the judge in the court a quo said. The appeal is heard on the record, so you cannot bring in
anything else other than what the court found, e.g. the lower court erred when it found negligence of ABCD.
It is essentially a summary therefore should not go beyond 4, 5 sentences. It simply states the grounds. The
arguments are the ones that will explain what you are saying in the grounds.

Once you have settled your memorandum of appeal which contains your grounds of appeal, the court will
not allow you to argue any ground outside those raised in the memo of appeal. If you wish to go beyond that
then you will have to get leave of court.

Preparing Record of Appeal

The rules requiring the content and sequence of how the record of appeal should be compiled should be
observed. Order 10/9/2 and Order 8/7 provides that the record of appeal must contain the following
documents in the order in which they are set out

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 i. Complete index of the evidence and the proceedings and documents in the case showing the
pages at which they appear
ii. Certificate of record signed by the Registrar
iii. Notice of appeal together with the Order granting leave to appeal
iv. Memorandum of appeal
v. Notice of address for service of the respondent
vi. Copy of the judgment appealed against
vii. Copies of pleadings [better off including all the pleadings]
viii. Copies of the affidavits which were filed in the HC together with their exhibits – to be arranged
in the order in which they were originally filed
ix. Any interlocutory proceedings which may be directly relevant to the appeal
x. The transcript of proceedings - The index should show the names of all witnesses and also
indicating the numerical sequence of the witnesses.
xi. A copy of the certificate after trial [normally a certificate of counsel who was handling the matter]
xii. A list of exhibits or schedule of evidence as the case may be indicating those items which are
being forwarded to the master and those which are being retained by the court below.
xiii. Where the record comprises more than one volume, must have an index of both volumes in the
first volume
Within 14 days after filing the record of appeal together with the heads of argument, you must then serve
copy on each party to the appeal. After service, the respondent has 30 days within which he must file his
heads of argument. If the respondent intends to file a supplementary record, that ought to be filed within 30
days. After the respondent has filed his heads of argument and served them on the appellant, the appellant
has 30 days within which he can filed heads of argument in reply.

Decisions of a Registrar or Master

The Registrar of the Court of Appeal does hear certain application. A person who is aggrieved by anything
done or a decision of a registrar or master may appeal to a single judge to have that decision or ruling set
aside or varied. An application from the decision of a registrar to a single judge is made by Notice of Motion
supported by an Affidavit. If a single judge has decided arising from the decision of the registrar and a party
is not happy with the decision, you then apply to the court.

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Amendment and Default
A court may at any time allow an amendment of a Notice or Memorandum of Appeal or Cross Appeal or any
part of the Record of Appeal on such terms as the court or a judge may think fit. Your application will refer to
specific things that you want amended. If the record of appeal is not prepared in the prescribed manner, the
appeal may be dismissed. An appeal can also be withdrawn at any time before hearing by filing a notice of
withdrawal of appeal.

Notice of non-appearance at the hearing of the appeal

Sometimes, if you do not wish to attend the hearing of the appeal on the scheduled date, you can prepare a
notice of non-appearance and file it into court, provided this is not less than 7 days before the date fixed for
the appeal. At the hearing of the appeal the court will rely on the arguments that you have already settled
and filed.

Non-appearance of the Parties

If on the day fixed for hearing of the appeal the appellant does not appear in person or by a practitioner, the
appeal may be dismissed. If on the other hand, the respondent fails to appear, the appeal shall proceed in
the absence of such respondent. In case both parties fail to appear, the court may adjourn the appeal, or it
may be struck out or it may be dismissed. Where an appeal is dismissed, or struck out, a party who was
absent can apply to court within 7 days of the dismissal for the re-hearing and where sufficient reasons of
the absence are given, the court may order the appeal to be restored for hearing.

Preliminary Objections
A respondent who intends to make any preliminary objection in relation the appeal, for whatever reason,
should file/give notice of the preliminary objection within 14 days of date of receipt of the record of appeal.
On the other hand, an appellant who intends to make a preliminary objection should likewise give notice of
the objection and serve on the parties to the appeal within 14 days from the date of receipt of the heads of
argument from the respondent. The consequence of failing to give the notice within the prescribed time is
that the court of appeal may refuse to entertain the objection or may adjourn the hearing and make such
further order as the court may consider just. This rule also applies to cross appeals.

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Where one is unhappy with the decision of the court of appeal, one can appeal to the Supreme Court with
the leave of court. Leave is mandatory. Where the court of appeal declines to grant leave, you can go to the
Supreme Court and apply for leave there. This provision is also included in the constitution so that an appeal
from the court of appeal to the Supreme Court is no longer a right unlike an appeal from the high court to the
court of appeal. There are strict grounds on which one may be granted leave to appeal to the Supreme Court
from the decision of the court of appeal:
i. The appeal raises a point of law of public importance;
ii. Leave may be granted if you can demonstrate that it is desirable and in the public interest that
an appeal by the person convicted [criminal matters] should be determined by the supreme court;
iii. You have to demonstrate that the appeal will have a reasonable prospect of success;
iv. Demonstrate that there is some other compelling reason for the appeal to be heard.
If you fail to satisfy any of the requirements, you cannot move to the court of last resort which is the Supreme
Court. In practice, this has worked well to filter a number of frivolous appeals.

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 CONSTITUTIONAL COURT
Is established under article 127 of the Constitution. It consists of a President, Deputy President and eleven
(11) other judges or a higher number of judges as may be prescribed.
The President is the administrative head of the Con court and is responsible for administering the Con Court
under the direction of the Chief Justice [article 138]. The Chief Justice has no place in the Constitutional
Court. The con court is at par with the Supreme Court viz a viz the Constitution.
Jurisdiction
The Con court has original and final jurisdiction to hear a matter relating to:
a. To the interpretation of the Constitution – what does this provision mean?
b. a violation or contravention of the Constitution
c. to the President, Vice-President, or an election of a President – e.g. whether a person qualifies to
contest as President
d. Appeals relating to elections of members of parliament and councillors – high court has jurisdiction
for these matters but appeals heard in con court
e. A question on whether or not a matter falls within the jurisdiction of the Con Court
Whenever a question relating to the Constitution arises in any court, the person presiding in that court shall
refer the question to the Con court. This means that if a question arises as touching on the Constitution
whether in the sub court, high court, court of appeal or Supreme Court, and the person presiding in that court
must refer the question to the con court. The con court can guide the Supreme Court on matters relating to
the Constitution.
A person who alleges that [article 128(3)];
a. An act of Parliament or Statutory Instrument; or
b. An action, measure, or decision taken; or
c. An act, omission, measure or decision by a person or authority, contravenes the Constitution, may
petition the Con court for redress.
Exception: Matters covered by article 28 of the Constitution, relating to the Bill of Rights, i.e. enforcement of
protective measures under the Constitution [article 11-26]. These kinds of matters go to the High Court and
not the con court.

Sittings of the Con court

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The con court is constituted by an uneven number of not less than three (3) judges, except when hearing an
interlocutory matter which is heard by only one (1) judge. A full bench is constituted by an uneven number of
not less than five (5) judges.

Presided by the president and in the absence of the President, the Deputy President and in the absence of
the Deputy President, the senior most Judges who constitute the bench at the particular time.

Practice and Procedure

The jurisdiction vested in the court as regards practice and procedure is exercised in the manner provided
for the Con Court Act, the Con Court Rules, Criminal Procedure Code, or any other written law or by such
Rules, Orders or Directions of the court as may be made under the Act, or such written law as may be made
under the Act, and in default thereof, in substantial conformity with the Supreme Court Practice 1999 (white
book), and the Law and Practice applicable in England in the Court of Appeal up to 31st December 1999.

Commencement of Proceedings
All matter is the con court are commenced by Petition. A petition which is filed in the con court must disclose:
a) The petitioner’s name and address;
b) Fats relied upon;
c) Constitutional provision alleged to have been violated;
d) The relief sought by the petitioner.
For petitions under article 28 of the constitution, procedure is carried on in terms of the Protection of
Fundamental Rules of 1969. The Petition in the con court is more or less similar. The respondent to a petition
is required to respond by way of Answer and Opposing Affidavit within fourteen (14) days of service of the
Petition. The petitioner may reply to the Answer within seven (7) days after being served the Answer.
NB: A petition should be signed either by the Petitioner or the Petitioner’s Advocate.

One can also file a Cross Petition upon being served the Petition by the Petitioner. In terms of content, the
cross petition will carry similar contents as the petition itself. In addition to petition, the following matter are
commenced by Originating Notice of Motion:
a. A matter relating to the Republican President or Vice President other than the nomination or election
of the Republican President or Vice President;

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 b. An application to review a decision of the Electoral Commission of Zambia in the delimitation of
Constituencies and Wards;
c. A matter relating to the interpretation of the Constitution is commenced by Originating Summons.
A respondent to both an Originating Notice of Motion and Originating Summons ought to respond by
filing an Affidavit in Opposition within fourteen (14) days of being served the summons or motion.
d. A reference of a matter to the court by the Republican President under article 81(5) or article 92 of
the Constitution is made in writing and that reference is accompanied by a notification in writing
setting out the details of the issues for determination. A president can refer a matter under article
81(5) to the con court relating to dissolution of parliament. The con court should within 7 days decide
of the matter. Article 94(2) refers to approvals by the national assembly of nomination by the
President to perform executive functions. The national assembly must within 21 days approve those
nominees, if they unduly delay, the President can refer such a matter to the Constitution. Order 4/3/1
– reference of the matter by the President is to be accompanied by a notification in writing setting
out the issues for determination.
The Con court like any other court has jurisdiction to hear interlocutory application and hear ex parte matters
and make ex parte orders. It may sit in open court or in chambers for the hearing of the matters. The evidence
before the court may be taken orally or by affidavit.

Appeals and Cross Appeals

The Con Court is also an appellate court. Appeals from the High court for all constitutional matters, except
bill of right matters lie in the Constitutional Court. BOR matter appeals lie in the Supreme Court. Leave to
appeal has to be sought from the court of first instance, i.e. the High Court, sub court or the Tribunal, for
matters which require leave before one can file a notice of appeal. Where leave has been declined, that leave
has to be sought from the single judge of the con court. If the single judge refuses to grant leave, one may
renew the application for leave before the court.

Once leave has been granted, you prepare a Notice of Appeal which must state whether the appeal is
against the entire judgment or parts of the judgment. You also have to settle a Memorandum of Appeal,
both of which should be filed with the Registrar of the Con Court within 30 days of the Judgment appealed
against. The rules regarding service of the Notice and Memo of appeal will be the same as the CoA. The
respondent must file a Notice of Address for service. This is for general appeals.

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There are different categories of appeals and matters. Appeals relating to nominations have slightly different
rules. If the appeal relates to the election of a member of parliament or a councillor, the notice of appeal,
memo of appeal and the record of appeal have to be filed within 5 days of the judgment of the High Court or
the Tribunal. The Con court has to hear and determine that appeal within 14 days from the date of
lodgement.

Lodging the Record of Appeal

The appellant shall within 30 days after filing the notice of appeal lodge the appeal by filing into the registry
20 hard copies of the record of appeal together with heads of argument and an electronic copy of the record
of appeal. If the appeal is not lodged within the 30 days period, a respondent may make an application to
dismiss the appeal for want of prosecution.

Order 11/4 on the Con Court Rules provides what the record of appeal shall contain. The format, sequences,
description is mirrored on what is provides for under the Court of Appeal Rules.

After the respondent has been served with the heads of argument and the record of appeal in the con court,
the respondent has to file 21 hard copies of heads of argument in response within 30 days from the date of
service. In the con court, the provision is different: the respondent has 7 days before the date fixed for the
hearing to file 20 hard copies and an electronic copy of the respondent’s heads of arguments.

Cross appeal same as that in the CoA. Only difference is that respondent has not more than 7 days after
service on him of the record of appeal to file 20 hard copies of a Notice of Cross Appeal. A party may not
more than 7 days before the date fixed for hearing file a Notice of Non-appearance. At the hearing of the
appeal in the event that either or both parties do not appear are more or less the same as in the CoA – Order
11/4/1/?? Of Con Court Rules.

Where costs have been awarded, to be taxed, taxation proceedings must be commenced within 3 months of
the Judgment. The taxation will be conducted by the taxing officer in the Con court.

Additional Rules for Presidential Election Petitions

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In terms of commencement of action, a challenge to the results of the Presidential election may be mounted
by filing an election petition which ought to be filed within 7 days of the declaration of an election result in
accordance with article 101 of the Constitution.
The petition should disclose
 the petitioner’s name and address;
 facts relied upon;
 provision of the constitution or any other law relating to elections which is alleged not to have been
complied with; and
 Relief sought by the petitioner.
The petition ought to be filed together with
 an Affidavit Verifying Facts,
 Witness Statement,
 Skeleton Arguments
 List of Authorities and copies of Authorities cited.
A respondent to the petition should within 5 days of service of the petition on the respondent, respond by
filing
 an Answer together with
 an Opposing Affidavit
 witness statements;
 skeleton arguments and
 list of authorities
 Copies of the authorities cited.
The petitioner may respond or may Reply to the Respondent’s answer within 2 days of being served with the
Answer and Opposing Affidavit. The reply should be filed together with the skeleton arguments in reply.

Scheduling Conference
A judge of a Con court should immediately after a filing of a Petition and Answer summon parties to a
scheduling conference at which a judge will give directions for trial. The judge in consultation with the parties
should also issue directions with regards to discovery and inspection of documents, preparation of bundles
of documents and setting the trial date.

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The witness statements that is filed in the Presidential election petition are treated as Evidence in Chief of
the witnesses and should contain all the facts relevant to the petition or the Answer, or the Reply. The Rules
say that the witness statements must refer to the documents which are in the bundle of documents. Failure
to do so will result in the documents being produced but not admitted into evidence. The court will not allow
a witness to testify who did not give a witness statement.

After the scheduling conference, the judge can summon parties to a compliance or status conference to
review the status of the petition and make order including orders as to costs against the defaulting party.
In the con court like any other court, the court has jurisdiction to extend time limited by the rules or by a
decision of the court, except where time is limited by the constitution.

Clerical errors by the court or a judge in documents, process or judgment arising from any accidental slip or
omission may be corrected provided its done within 7 days of the decision which is sought to be corrected.
SUPREME COURT
Established under article 124 of the Constitution. The Supreme Court comprises the Chief Justice, Deputy
Chief Justice and eleven judges or a higher number as may be prescribed. In terms of jurisdiction, it is the
highest court in the land-court of last resort. It hears appeals from the court of appeal and any other jurisdiction
conferred on it by any law. Tax Appeals Act still refers to appeals to the Supreme Court.

There is a specific provision in the Constitution which says that the SC is bound by its decisions except in
the interest of justice and development of jurisprudence. You can go before the SC and say because you
decided this case this way, which is on all fours with a case that you are dealing with, this one must be
decided the same way.

The SC bench is constituted by at least three judges. A full court is constituted by at least five judges. When
hearing an interlocutory application, a single judge will sit.

Practice and Procedure

The jurisdiction vested in the SC as regards practice and procedure is exercised in the manner provided for
under the Supreme Court Act, Cap 25 and the Supreme Court Rules. However, where our Act and the Rules
do not make any provision on a particular point, the procedure that the court adopts in criminal matters is as

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nearly as may be in accordance with the Law and Practice observed in the Supreme Court of England. In
civil matters, as nearly as may be in accordance with the Supreme Court Practice 1999, RSC 1965 (white
book) and the Law and Practice in the Court of Appeal in force in England up to 31 st Dec 1999.

There are certain matters which we just cannot appeal. Look at section 24 of Cap 25 for restrictions on
appeal. All that the Act provides is that you cannot appeal from an order allowing for extension of time within
which to appeal against a judgment. An appeal to a Supreme Court is no longer a right, you need leave, and
where leave has been denied you can go before a single judge to have the application for leave renewed.
You cannot appeal against a consent order.

Interlocutory applications may be made to a single judge and the application in most cases is made by
summons (ground must be stated in there) or a motion, and where necessary accompanied by an affidavit.
Any person aggrieved by a decision of a single judge in chambers may then move to the court. In this case
the court is defined as three judges.

You can apply for extension of time where for instance you were asked to do certain acts within a specific
period and that period has lapsed. If it is from a judgment, that application ought to be done within 21 days
from the date of that judgment. Rule 12/2 of the RSC provides that you must launch that application before
the 60 days has expired. The shortcut in practice is to file out of time if within time (??). After the time, then
you have to apply for leave to file the application out of time.

A person who intends to make an objection must give notice to the court 7 days before hearing the appeal.
The consequence of not giving a notice is that you will not be allowed to raise that objection at the hearing.
Once a notice of appeal has been filed (together with a memorandum of appeal), and served, the party on
whom it has been served has to file a notice of address for service. If you don’t do this, parties and the court
are not obliged to serve any documents on you including the notice of hearing the appeal. 60 days later, a
record of appeal must be filed together with Heads of Argument. In the Supreme Court, it is 13 copies. If
the record of appeal is not filed within the 60 days, the respondent can move the court to have the appeal
dismissed for want of prosecution.

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The rules relating to how to draft a Memo of appeal are the same as in the Con court and Court of Appeal:
concise, precise etc. Rule 58/4 provides more or less the same contents for the record of appeal as in the
other superior courts. Remember that the index must refer to every document, to the witnesses, their page
numbers, in the sequence or order in which they appear before the court. A record not prepared in
accordance with the rules can be dismissed. The record must be on metric A4 paper of good quality and it
should be clear and easily legible, typewritten, only one side of the paper should be used, and a margin of
not less than 4cm should be left on the left-hand side of each sheet to permit. The record of appeal should
be bound in book form with an outside cover of stout paper. If in more volumes than one, the title of the
appeal should appear on the cover. It must be paginated from beginning to end. If the record of appeal is not
drawn up in the prescribed manner the appeal may be dismissed.

Absence of a party, same consequences as in the court of appeal.

An appeal to the Supreme Court is by way of re-hearing on the record. They decide the matter on the basis
of the record that is before it, no knew evidence shall be admitted unless am application has been made.
Clerical errors by the court or judge in the document which has arisen out of an accidental slip or omission
can be corrected by the court. Rule 78 seems to provide that there is no hearing which is different to the slip
rule in the white book.

Order after Judgment

Every judgment of the court is supposed to be embodied in an order. The rules say that it is a duty of a
successful party in the appeal to prepare a draft order and submit it for approval of the other parties to the
appeal. If the other parties do not approve, then that order will have to be settled by the presiding judge. This
means that after an appeal has been heard and a judgment has been read (combination of opinions of a
court), each judge would write his own opinion, whether the same or dissenting. The successful party is then
supposed to draft an order and circulate to the other party saying do you agree? If there are amendments
agree on by the parties, it is taken to the presiding judge who then signs and forwards to the Registrar of the
court. Where the parties do not agree on the amendments, it’s sent back to the presiding judges who then
invites them to hear them and then prepares the order. It is that order which is then subject to execution.
Where judgment is supposed to be followed by an order because you execute against the order.

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Article 122 of the Constitution says that in the exercise of judicial authority, the judiciary shall be subject only
to this constitution and the law, and not subject to the direction or control of any individual and a person
holding public office shall not interfere with a decision or the performance of the judicial function of a judge
or a judicial officer. A person holding public office shall protect the independence of the judiciary. This
provision speaks to the functional independence of the judiciary.

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