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ZAMBIAN OPEN UNIVERSITY

SCHOOL OF LAW

NAME; UPENDO BWALYA

COMPUTER NUMBER; 21910691 - Distance

YEAR OF STUDY 2024 (3rd Year)

SEMESTER NUMBER; ONE (1)

COURSE; CIVIL PROCEDURE

COURSE CODE; LL351

LECTURER; COLLINS NKUMBWA, ESQ.

ASSIGNMENT NUMBER; ONE (1)

MOBILE NUMBER; 0961691362/0973866986

EMAIL; upendobwalya98@gmail.com

QUESTION:

By making reference to the Order and Rule of procedure and/or case law, DISCUSS ALL the
different types of commencement of a civil action or civil appeal in the courts listed below:
1. Subordinate Court;

2. Lands Tribunal;

3. High Court (commercial division, principal division, family division, industrial relations)

4. Court of Appeal;

5. Constitutional Court; and

6. Supreme Court
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INTRODUCTION

This assignment shall embark on a comprehensive exploration of the commencement

procedures for civil actions and appeals in key Zambian courts, namely the Lands Tribunal,
High Court, Court of Appeal, Constitutional Court, and Supreme Court. By delving into the
intricacies of each court's rules and regulations governing the initiation of legal proceedings,
this paper shall aim to provide a detailed analysis that elucidates the essential steps and
requirements for commencing civil actions and appeals effectively.

COMMENCEMENTS IN CIVIL ACTIONS COURT

1. Subordinate Courts

Subordinate Court Act (Cap 27) is not a complete document in that it does not include
everything you need to know e.g. how to undertake interlocutory applications. These are in
the Subordinate Court Rules – appended to the Act and known as “orders”

Constitution/Jurisdiction of Subordinate Courts (Part II & Part III of Cap. 28)

The Subordinate Courts are established by s.3 of the Subordinate Courts Act Cap. 28. They
are divided into three categories:

i. Subordinate court of the First Class - presided over by a PRM, SRM, RM or

Magistrate Class I.
ii. Subordinate court of the Second Class - presided over by a Magistrate Class II.
iii. Subordinate court of the Third Class - presided over by a Magistrate Class III.

Section 4: all magistrates have jurisdiction in the geographical districts where they are
constituted. Thus, a magistrate from Kabwe cannot come to Lusaka to hear a case without
authority from the Chief Justice. (Section 24 – the Chief Justice has the power to extend the
jurisdiction of a magistrate under his hand and seal. Without this express authority of the CJ it
is not possible for a magistrate to act in other districts. The jurisdiction of magistrates is
limited (unlike the authority of the High Court). Following Act Number 25 of 1998, the
jurisdiction of magistrates in civil matters was increased.

The Subordinate Court Rules (“Orders”)

The subordinate courts Act confers powers on the Chief Justice to make subordinate court
rules called “orders”.
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Order I: General Forms of Process, Fees etc.

Order I deal with matters relating to the sealing of writs/default writs etc.

Rule 1 - defines “proper officer of the court” as “any magistrate exercising jurisdiction in that
court, any clerk of the court acting under the provisions of section 34 of the Act or any officer
appointed in writing as such by any magistrate exercising jurisdiction in the particular court.”

After preparing a writ/any document you must present it to the clerk of the court in the civil
registry for filing and issuance. On presenting the document, the court officer will “seal” the
document and this signifies that it has duly been “issued” by the court. [Note, the necessary
court fees must be paid and receipt obtained.]. Sealing: done by a rubber stamp and not a
metal seal. [Note: rules 7 and 8 regarding affixing stamps have now been abandoned but the
rules have not been amended to reflect this.] Once the document has been issued you can
proceed to “serve” it on the other party.

2. Lands Tribunal:

The Lands Tribunal Court is created by Section 20 1 of the Lands Act2 and is primarily
governed by the Lands Tribunal Act 3. The Lands Tribunal in Zambia serves as a specialized
court tasked with resolving disputes related to land matters. Commencement of civil actions
in the Lands Tribunal involves adherence to specific procedures outlined in the Lands
Tribunal Act and the Lands Tribunal Rules.

To initiate a civil action in the Lands Tribunal, the plaintiff typically files a statement of claim
or application, depending on the nature of the dispute pursuant to Section 8 of the Lands
Tribunal Act4. The statement of claim serves as the primary document outlining the plaintiff's
case, detailing the facts, legal basis, and relief sought. Alternatively, an application may be
made for specific relief or remedies, such as an injunction or declaration.

Upon filing the statement of claim or application, the court will serve the necessary
documents on the defendant, notifying them of the legal action. The defendant is then given
an opportunity to respond by filing a defense or counter-application within the prescribed

1
S.20.1) There is hereby established a Lands Tribunal.
2
Chapter 184 of the laws of Zambia
3
Act no. 39 of 2010
4
S.8 “A person may apply to the tribunal for a determination on any matter which falls within the jurisdiction of
the Tribunal.”
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time limit. Once the pleadings are complete, the Lands Tribunal will schedule a hearing to
allow both parties to present their arguments and evidence before the tribunal5.

Powers of the Tribunal with respect to proceedings is contained in Section 11. Subsection 3
and 4 provides that ‘…summons for the attendance of a witness or for the production of any
book, document, record or other thing shall be signed by the Registrar of the Tribunal and
served in the same manner as a subpoena for the attendance of a witness at a civil trial in a
High Court.6’ according to S.11 ( 4) ‘any person giving evidence or summoned to give
evidence or to produce any book, document, record or other thing before the Tribunal, shall
be entitled to the same privileges and immunities as if the person were summoned to attend or
were giving evidence in a civil proceeding before a High Court.

After considering the evidence and arguments presented, the Lands Tribunal will render a
decision, either in favor of the plaintiff, the defendant, or a combination thereof. The
tribunal's decision may include orders for specific performance, damages, or other remedies
deemed appropriate based on the merits of the case and relevant legal principles.

Overall, the commencement of civil actions in the Lands Tribunal requires adherence to
procedural rules and timelines to ensure a fair and efficient resolution of land disputes in
Zambia. By providing a specialized forum for resolving such matters, the Lands Tribunal
plays a crucial role in upholding the rule of law and promoting access to justice in the realm
of land-related issues.

3. High Court (commercial division, principal division, family division, industrial

relations)

As a general guide, where the rules of the High Court or Supreme Court or any other statute
provides for a specific procedure, only that procedure will be accepted by the court per
Chikuta v Chipata Rural Council7. “The Zambian rules are much more rigid ……”. The
Appellant sought a declaration that he was still employed by Chipata Rural Council and
brought the matter before the court by way of an originating summons. Held:

a) There is no case in the High Court where there is a choice between commencing an
action by writ of summons or by an originating summons. The procedure by way of

5
Section 11 of the Lands Tribunal Act.
6
S11 (3)
7
1974, ZR 241, 243
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originating summons only applies to those matters referred to in O6 r2 of the HCR

and to those matters which may be disposed of in chambers.

b) Where any matter is brought to the High Court by means of an originating summons
when it should have been commenced by writ, the court has no jurisdiction to make
any declarations.

c) The increasing practice amongst lawyers conducting cases of introducing evidence by

filing affidavits containing hearsay is not merely ineffective but highly undesirable
particularly where matters are contentious.

If no procedure is provided for, the action must commence by writ of summons and a
statement of claim.8 In Wise v Hervey Ltd9 it was held that a cause of action is disclosed when
a factual situation is alleged that contains facts 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.

Commercial Division:

The Commercial Division is one of the Division of the High Court of Zambia. It is
established pursuant to Article 133(2) of the Constitution of Zambia. 10 In commercial
disputes, the plaintiff typically initiates the action by filing a writ of summons or originating
process. This document outlines the nature of the claim, the relief sought, and the grounds for
the claim. It also identifies the parties involved in the dispute and the jurisdiction of the court.

The Commercial Division have specific procedural rules tailored to commercial disputes.
These rules include pre-action protocols aimed at encouraging parties to resolve disputes
through negotiation or mediation before proceeding to litigation. Case law may provide
guidance on the interpretation and application of these procedural rules, ensuring consistency
and fairness in commercial litigation.

Principal Division:

Similar to the Commercial Division, civil actions in the Principal Division commence with
the filing of a writ of summons or originating process. The choice between these documents
depends on the nature of the case and the relief sought. For instance, a plaintiff may opt for a

8
High Court Rules, Order 6 Rule 1.
9
[1985] ZMSC
10
Amendment No. 2 of 2016.
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writ of summons for claims involving a specific monetary amount or an originating process
for claims seeking declaratory relief or specific performance.

Procedural rules in the Principal Division may vary depending on the type of civil matter,
such as contract disputes, tort claims, or equitable remedies. Case law plays a crucial role in
clarifying procedural requirements and addressing novel legal issues that may arise during
litigation. For example, case law may establish guidelines for pleading requirements,
evidence admissibility, or motions practice in the Principal Division.

Family Division:

Family-related matters, such as divorce, custody, or maintenance, are initiated by filing a

petition or originating motion in the Family Division. These documents set out the grounds
for the relief sought and provide details about the parties involved, including any dependent
children.

Family disputes often involve sensitive issues requiring specialized procedures. Case law
may establish protocols for mediation, counseling, or alternative dispute resolution methods
to promote amicable resolution and protect the interests of children involved. Additionally,
case law may address procedural matters specific to family law, such as the division of
marital assets, spousal support, or child custody arrangements.

Industrial Relations Division:

Civil actions or appeals in the Industrial Relations Division typically commence with the
filing of a notice of motion or originating summons. These documents set out the relief
sought and the legal basis for the claim, particularly in matters related to employment
disputes, collective bargaining agreements, or labor law violations.

Industrial relations cases often involve complex issues of employment law and workplace
regulations.11 Case law may establish specialized procedures for resolving disputes, such as
mandatory arbitration or conciliation before litigation proceeds to trial. Additionally, case law
may provide guidance on interpreting labor statutes, collective bargaining agreements, or
industrial relations policies to ensure fair and equitable outcomes for all parties involved.

In summary, each division of the High Court in Zambia has its own distinct procedures for
commencing civil actions or appeals, tailored to the nature of the disputes it handles. Case

11
Mwenda, W.S. & Chungu, C. (2021). A Comprehensive Guide to Employment Law in Zambia. UNZA Press:
Lusaka
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law plays a critical role in shaping and interpreting these procedures, providing clarity and
guidance to litigants and legal practitioners navigating the civil justice system.

4. Court of Appeal:

The Court of Appeal in Zambia serves as the appellate court, primarily responsible for
hearing appeals from decisions of the High Court and other lower courts. The commencement
of civil appeals in the Court of Appeal follows specific procedures outlined in the Court of
Appeal Rules12.

Civil appeals rules are contained in Order X of the Court of Appeals Act 13 To initiate a civil
appeal in the Court of Appeal, Section 2(1) of Order X demands that the appellant must file a
notice of appeal within fourteen days from the decision complained of. The notice of appeal
formally notifies the court and the other parties involved of the appellant's intention to
challenge the decision and sets out the grounds for the appeal. Along with the notice of
appeal, the appellant is required to submit the necessary documents, including copies of the
judgment or order being appealed, the record of proceedings from the lower court, and any
relevant evidence or exhibits. Additionally, the appellant may be required to file written
submissions outlining the legal arguments and authorities supporting their appeal.

Upon receipt of the notice of appeal and supporting documents, the Court of Appeal will
schedule the appeal for hearing. The parties involved will be notified of the hearing date,
allowing them adequate time to prepare their arguments and any additional evidence or
submissions. During the appeal hearing, both parties will have the opportunity to present their
arguments before the panel of appellate judges. The appellant will typically begin by
outlining their grounds for appeal and addressing any issues raised in the lower court's
decision. The respondent, on the other hand, will have the chance to rebut the appellant's
arguments and defend the lower court's decision.

After considering the arguments, evidence, and applicable law, the Court of Appeal will
render its decision, either affirming, reversing, or modifying the lower court's decision. The
court's decision is typically final, although in some cases, further appeals may be possible to
higher courts, such as the Supreme Court.

In summary, the commencement of civil appeals in the Court of Appeal involves filing a
notice of appeal, submitting relevant documents and submissions, attending the appeal
12
Statutory Instrument no.65 of 2016 Act no.7 of 2016
13
Ibid
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hearing, and awaiting the court's decision. Adherence to procedural rules and timelines is
crucial to ensure the efficient and fair resolution of appellate matters in Zambia's judicial
system.

5. Constitutional Court:

The Constitutional Court of Zambia holds a vital role in safeguarding the constitutionality of
laws, government actions, and protecting fundamental rights and freedoms. Commencing
civil actions in the Constitutional Court involves specific procedures set forth in the
Constitution of Zambia14 and the Constitutional Court Act15.

To initiate a civil action in the Constitutional Court, the plaintiff typically files a petition or
originating summons challenging the constitutionality of laws, government actions, or
seeking the enforcement of fundamental rights and freedoms. The petition or originating
summons outlines the legal basis for the challenge and the relief sought by the plaintiff.

The filing of a petition or originating summons triggers a process where the Constitutional
Court reviews the allegations made by the plaintiff and assesses whether they raise valid
constitutional issues warranting judicial review. According to Section 25(1) of the
Constitutional Court Act, the court may examine the petition to ensure compliance with
procedural requirements and may request additional information or clarification from the
parties involved.

Once the petition is deemed admissible, the Constitutional Court will schedule a hearing to
allow both parties to present their arguments and evidence. The court may also invite amicus
curiae (friends of the court) to provide additional perspectives on the constitutional issues at
hand. During the hearing, the plaintiff will present arguments supporting the petition, while
the respondent, typically the government or relevant authorities, will have the opportunity to
defend the constitutionality of the laws or actions in question. The court may also consider
written submissions, expert opinions, and precedents in reaching its decision.

After hearing the arguments and reviewing the evidence, the Constitutional Court will render
its decision, either upholding the constitutionality of the laws or actions challenged, or
declaring them unconstitutional and providing appropriate remedies. The court's decision
serves as a binding interpretation of the constitution and sets precedent for future cases.

14
Supra note 10
15
Act no.8 of 2016
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In conclusion, commencing civil actions in the Constitutional Court involves filing a petition
or originating summons, presenting arguments and evidence during a hearing, and awaiting
the court's decision on the constitutionality of the laws or actions in question. The court's role
in upholding constitutional principles and protecting fundamental rights underscores its
significance in the Zambian legal system.

6. Supreme Court:

As the highest court in Zambia, the Supreme Court holds jurisdiction over both civil and
criminal matters. Concerning civil appeals, the commencement of proceedings in the
Supreme Court follows specific procedures outlined in the Supreme Court Act 16 and the
Supreme Court Rules.

The legal framework of civil appeals is contained in Part IV of the Supreme Court Act. 17 To
initiate a civil appeal in the Supreme Court, the appellant must file a notice of appeal within
the prescribed time limit, typically within a specified number of days after the decision being
appealed. The notice of appeal formally notifies the court and the other parties involved of
the appellant's intention to challenge the decision and sets out the grounds for the appeal.

Along with the notice of appeal, the appellant is required to submit the necessary documents,
including copies of the judgment or order being appealed, the record of proceedings from the
lower court, and any relevant evidence or exhibits. Additionally, the appellant may be
required to file written submissions outlining the legal arguments and authorities supporting
their appeal.

Upon receipt of the notice of appeal and supporting documents, the Supreme Court will
schedule the appeal for hearing. The parties involved will be notified of the hearing date,
allowing them adequate time to prepare their arguments and any additional evidence or
submissions.

During the appeal hearing, both parties will have the opportunity to present their arguments
before the panel of judges. The appellant will typically begin by outlining their grounds for
appeal and addressing any issues raised in the lower court's decision. The respondent, on the
other hand, will have the chance to rebut the appellant's arguments and defend the lower
court's decision.

16
Chapter 25 of the Laws of Zambia
17
Ibid.
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After considering the arguments, evidence, and applicable law, the Supreme Court will render
its decision, either affirming, reversing, or modifying the lower court's decision. The decision
of the Supreme Court is final and binding, marking the conclusion of the appellate process for
the particular case.

In summary, commencing civil appeals in the Supreme Court involves filing a notice of
appeal, submitting relevant documents and submissions, attending the appeal hearing, and
awaiting the court's decision. Adherence to procedural rules and timelines is crucial to ensure
the efficient and fair resolution of appellate matters in Zambia's judicial system. The Supreme
Court's role as the apex judicial body underscores its significance in providing authoritative
interpretations of law and ensuring the consistency and coherence of the legal system.

CONCLUSION

In conclusion, it is sufficed to say that the commencement of civil actions or appeals in

Zambian courts is governed by specific procedures outlined in the respective court rules and
legislation. Whether in Subordinate Courts, the Lands Tribunal, High Court, Court of Appeal,
Constitutional Court, or Supreme Court, initiating proceedings involves filing appropriate
documents, paying prescribed fees, and adhering to procedural requirements. Understanding
and following these procedures are essential to ensure the proper commencement of civil
actions or appeals in the Zambian legal system.
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BIBLIOGRAPHY

BOOKS;

Mwenda, W.S. & Chungu, C. (2021). A Comprehensive Guide to Employment Law in

Zambia. UNZA Press: Lusaka

CASE LAW;

Chikuta v Chipata Rural Council [1974] ZR 241, 243

Wise v Hervey Ltd [1985] ZMSC

STATUTES;

Constitutional Court Act, no.8 of 2016

Court of Appeal Rules, Statutory Instrument no.65 of 2016 Act no.7 of 2016

Lands Act, Chapter 184 of the laws of Zambia

Lands Tribunal Act, no. 39 of 2010

Subordinate Court Act, Chapter 27 of the Laws of Zambia

Supreme Court Act, Chapter 25 of the Laws of Zambia