CCP Unza Module

Lecture Notes:
CIVIL AND CRIMINAL PROCEDURE
MAPANI CHRISTOPHER
(LLM, MBA, MIP, LLB, Bsc. ProdMgt, AHCZ)
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Statutes and Recommended Texts:
● High Court Act Cap 27 of the Laws of Zambia
● Subordinate Court Act Cap 28 of the Laws of Zambia
● Criminal Procedure Code
● Penal Code
● Odgers on Civil Court Actions – Practice and Procedures
● Zambia Civil Procedure – Commentary and Cases, Volumes I and II by
Dr. Patrick Matibini
Expectations
At the end of the course, students are expected to know how to;
(a) institute court proceedings;
(b) apply for an interim injunction;
(c) enforce a judgement;
(d) prosecute a criminal offence; and
(e) draft documents to be filed in court particularly the following: -
(i) Writ of Summons;
(ii) Statement of Claim;
(iii) Originating Summons;
(iv) Originating Notice of Motion;
(v) Default Writ of Summons;
(vi) Ordinary Summons;
(vii) Affidavit; and
(viii) Orders.
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INTRODUCTION
This course covers Civil and Criminal Procedure in both the High Court and
the Subordinate Court. While drawing on substantive law, the course differs
from other courses in that it is concerned with procedure. Thus, as much as
you will be required to draw on your knowledge of substantive law, you
should always bear in mind this is a course on procedure. This course also
differs from other courses in that it involves drafting of court documents.
The course is divided into 2 Parts: Part I deals with civil Procedure while
Part II relates to Criminal Procedure.
THE ZAMBIAN JUDICATURE AND JURISDICTION

One of the important considerations for a litigant is the forum in which to
institute proceedings. This requires knowledge of the structure of the court
system and the jurisdiction of the respective courts of law. Jurisdiction is
concerned with what matters a court or tribunal can inquire into.
The learned authors of ‘Words and Phrases Legally Defined’ Volume 3,

define jurisdiction as ‘the authority which a court has to determine
matters that are litigated before to or to take cognizance of matters
presented in a formal way for its decision’ and that ‘the limits of this
authority are imposed by statute, charter or commission under which
the court is instituted, and may be extended or restricted by the like
means’. Such limitation in jurisdiction may be with regard to the kind and
nature of matters of which the particular court has cognizance, or as to the
geographical area over which the jurisdiction extends.
In Zambia National Holdings Limited and United National Independence

Party (UNIP) v The Attorney General (1994) S.J. 22(SC), the Supreme
Court observed thus: -
‘…….The term ‘jurisdiction’ should first be understood. In one sense, it

is the authority which a court has to decide matters that are litigated
before it; in another sense, it is the authority which a court has to take
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cognisance of matters presented in a formal way for its decision. The
limits of authority of each of the courts in Zambia are stated in the
appropriate legislation. Such limits may relate to the kind and nature
of the actions and matters over which the particular court has
cognisance or to the area over which the jurisdiction extends, or
both…’
Article 120 of the Constitution of Zambia (Amendment) Act 2015 provides

that the Zambian judiciary shall comprise of superior courts and the
following courts: -
(a) Subordinate courts;
(b) Small claims courts;
(c) Local courts; and
(d) Courts, as prescribed.
Superior courts are the High Court, Court of Appeal, Constitutional Court
and Supreme Court. The Constitutional Court is equivalent to the Supreme
Court (Article 121). The Supreme Court is the final court of appeal on none
constitutional matters (save for those matters over which the high court still
retains jurisdiction). It hears appeals from the Court of Appeal upon leave to
appeal being granted [Article 131(2)] while the Constitutional Court has
original and final jurisdiction in constitutional (until Part III is repealed, with
the exception of the Bill of Rights) and election matters.
The Court of Appeal hears appeals from the high court except for
constitutional matters. The Industrial Relations court is now a division of
the High Court (Article 133(2). Under Article 134, the high court has original
and unlimited jurisdiction in civil and criminal matters. In the excise of
their judicial authority, courts are bound by the principles laid down under
Article 118. Students are expected to familiarise with the entire Part VIII of
the 2016 amended constitution.
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Regarding the high court’s ‘original and unlimited jurisdiction’, the Supreme
Court observed in Zambia National Holdings Limited and United National
Independence Party (UNIP) v The Attorney General (1994) S.J. 22(SC): -
‘In order to place the word ‘unlimited’ in Article 94(1) in its proper
perspective, the jurisdiction of the high court should be contrasted
with those of lesser tribunals and courts whose jurisdiction in a
cumulative sense is limited in a variety of ways. For example, the
Industrial Relations Court is limited to cases under a single enactment
over which the high court has been denied any original jurisdiction.
The local courts and subordinate courts are limited as to geographical
area of operation, types and sizes of awards and penalties, nature of
causes they can entertain and so on. The jurisdiction of the high court,
on the other hand, is not so limited; it is unlimited but not limitless
since the court must exercise its jurisdiction in accordance with the
law. Indeed Article 94(1) must be read as a whole including phrases
like ‘under the law and such jurisdiction and powers as may be
conferred on it by this constitution or any other law’. It is inadmissible
to construe the word ‘unlimited’ in a vacuo and then to proceed to find
that a law allegedly limiting the powers of the court is
unconstitutional’.
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PART I
CIVIL PROCEDURE
ESTABLISHMENT AND HIERARCHY OF SUBORDINATE COURTS

Subordinate Courts are established under the Subordinate Court Act Cap
27 of the Laws of Zambia (as amended by the Subordinate Courts
(Amendment) Act No. 4 of 2018) and comprise of subordinate courts of the
first, second and third class. The Subordinate Court of the First Class is
presided over by a Chief Resident Magistrate, Principal Resident Magistrate,
Senior Resident Magistrate, Resident Magistrate and Magistrate Class I
while Subordinate Courts of the Second and Third Class are presided over
by Magistrate Class 1 and 2, respectively. The jurisdiction of these
magistrate is stipulated under sections 20 – 23 of the Subordinate Courts
Act. Section 20 sets out powers of magistrates in civil matters dealing with
liquidated claims.
Section 4 of the Subordinate Courts Act stipulates that the jurisdiction of

magistrates ordinarily extends to the limits of the districts under which they
are constituted. Thus, a magistrate from Ndola cannot come to Kabwe to
hear a case without authority from the Chief Justice. Further to section 24,
the chief justice has the power to extend the jurisdiction of a magistrate.
Similarly, unlike the High Court, the amounts that can be awarded by the
Subordinate Court are limited. As will be seen when we come to criminal
procedure, sentencing powers of magistrates are equally limited. The
thresholds for awards in civil suits other that receiver of land were recently
adjusted upwards by the Subordinate Court (Amendment) Act No 4 of
2018 as follows: -
(a) Chief Resident Magistrate – K 100, 000;

(b) Principle Resident Magistrate – K 90, 000;
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(c) Senior Resident Magistrate – K 70, 000;
(d) Resident Magistrate – K 50, 000;
(e) Magistrate Class I – K 30, 000;
(f) Magistrate Class II – K 25, 000; and
(g) Magistrate Class III – K 20, 000.
In matters concerning recovery of land, the revised thresholds are as

follows: -
(a) value of land in question does not exceed K 200, 000;
(b) rent payable does not exceed K 50, 000 per year;
(c) in the case of a subordinate court presided over by a chief resident
magistrate, principal or senior resident magistrate, the rent
payable not exceeding K 100, 000 per year.
Further, Subordinate Courts lack jurisdiction over the following matters: -
(a) An application for habeas corpus;
(b) Matters relating to validity of a will;
(c) Matters relating to a person’s legitimacy;
(d) Matters relating to entitlement to right, duty or office; and
(e) Dissolution of a marriage.
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STANDARD HEADING OF COURT DOCUMENT
High Court documents will generally be headed as follows: -
IN THE HIGH COURT FOR ZAMBIA 2015/HP1/XXX

AT THE PRINCIPAL2 REGISTRY
HOLDEN IN LUSAKA
(Civil Jurisdiction)3
Between
JAMES BOTA Plaintiff
And
BEN MUTALE Defendant
Similarly, Subordinate Court documents, will be headed as follows: -

IN THE SUBORDINATE COURT OF 2006/SSP4/_ _ _ _
THE FIRST CLASS5 OF THE LUSAKA6 DISTRICT
HOLDEN AT LUSAKA
Between
JAMES BOTA Plaintiff
And
1
This will vary depending on the registry. HP is for the principal registry in Lusaka. For a district registry like
the Kabwe, HP will be replaced by HK, Ndola by HN, Kitwe by HK and Livingstone by HL.
2
The principal registry is the one in Lusaka. Those in provincial capitals are referred to as district registries.
3
The high court has criminal, civil, divorce and constitutional jurisdiction
4
SSP is Lusaka, SQ is Choma/Mazabuka etc.
5
May be Second Class or Third Class is the claims are small.
6
May be Livingstone, Kitwe etc.
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BEN MUTALE Defendant
INSTITUTING CIVIL PROCEEDINGS

Civil proceedings may be instituted either in the Subordinate Court or the
High Court. Before instituting proceedings, it is advisable to first attempt an
out of court settlement (ex-curia settlement). In this regard, it is standard
practice to first make a demand that the wrong be remedied and that failure
to do so would lead to legal proceedings being instituted. Where an out of
court settlement fails, the following should be considered: -
(a) Cause of Action: the plaintiff should establish the wrong

committed in respect of which redress is required. Thus, the
remedy being sought should also be clear.
(b) Who to Sue (Parties): The general rule is that only persons at
law can be sued. These may be natural or artificial person. Thus,
a company can be sued in its own name while a business name,
which lacks separate legal personality, will be sued through the
proprietor. Similarly, a political party will be sued through its
trustees, usually the secretary general, who will be sued in a
representative capacity. Infants, for example, will sue through a
next of kin and defend an action through a ‘guardian ad litem’.
For the State, recourse should be had to the State Proceedings
Act. The plaintiff should therefore consider the defendant’s
capacity to be sued. It is essential that the appropriate party is
joined to the action.
A party wrongly joined to the action may take out a mis-joinder

application while a party seeking to be joined applies through a
non-joinder application. A defendant may also take out a third
party notice seeking contribution or indemnity from a part not
joined to the action. Read more on representative actions,
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suing of companies, minors and bodies lacking legal capacity
and on third party proceedings in the rules.
When obtaining instructions find out from the client in what

capacity the client is giving you instructions.
Examples: -
A Personal Representative
Joke Tembo (suing7 in his capacity as the administrator Plaintiff
Plaintiff of the estate of the late Peter Banda )
John Tembo (suing as a trustee for XYZ Union) Plaintiff
A Sole Proprietor/Firm (Business Name)

Peter Mainza (trading as Mainza and Company) Plaintiff
A Minor - can only sue through an adult person (mother, father,

guardian)
Group Action
John Zulu and 99 other Plaintiffs
Note: The list of the parties should be attached.
Joinder of Parties
As indicated above, a party may apply to be joined to an action. The
following cases provide guidance as to when a party can be joined to
the action. In Mike Hamusonde Mweemba v Obote Kasongo and
ZISC (2006) ZR 101, the Supreme Court held that;
“A Court can order joinder if it appears to the Court or judge

that all parties who may be entitled to or claim some share or
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or sued if he is the defendant.
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interest in the subject matter of a suit or who may be likely to
be affected by the result require to be joined’.
In Abel Mulenga and Others v Chikumbi (2006) ZR 33, it was

held that;
‘In order for a party to be joined to an action, the party ought
to show that they have an interest in the subject matter of the
action. The mere fact that the Applicants may have been
affected by the decision of the Court does not cloth them with
sufficient interest or Locus Standi entitling them to be joined
to the dispute’.
(c) Forum: As earlier observed, proceedings should be instituted in

the court with jurisdiction.
(d) Mode of Instituting Proceedings: Proceedings should be

instituted under the appropriate mode. Order VI of the High
Court Rules as amended by The High Court (Amendment)
Rules, Statutory Instrument No. 58 of 2020, provides for
modes of instituting civil proceedings. High Court rules should be
read in the light of Statutory Instrument No. 69 of 1998 which
was extensively discussed in the case of Amber Louise Guest,
Milan Trbonic v Beatrice Mulako Mukinga, Attorney General
2010/HP/0344. In Amber Louise Guest, Milan Trbonic v
Beatrice Mulako Mukinga, Attorney General 2010/HP/0344,
Matibini J. clarified how the strict position taken in the Joseph
Jereta Chikuta v Chipata Rural Council (1974) ZR 241, 243
has evolved in the light of SI No. 69 of 1998.
In the Chikuta case, 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 summon. The
court held, inter alia:
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(i) That there is no choice in the high court where there is a
choice between commencing an action by writ of summons
or by an originating summons.
(ii) 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.
However, the effect of the Chikuta case has been modified and
watered down as discussed in case of Amber Louise Guest,
Milan Trbonic v Beatrice Mulako Mukinga, Attorney General
2010/HP/0344. On the other hand, guidance has been provided
in the case of New Plast Industries v The Commissioner of
Lands and Attorney General (2001) SCZ Judgement No. 8 of
2001 to the effect that the mode of commencement is not
determined by the remedy sought but rather the relevant law.
The Supreme Court held: ‘it is not entirely correct that the mode of
any action largely depends on the relief being sought. The correct
position is that the relevant statute generally provides the mode of
commencement of any action. Thus, where a statute provides for
the procedure of commencing an action, a party has no option but
to abide by that procedure’.
In Amber Louise Guest, Milan Trbonic v Beatrice Mulako

Mukinga, Attorney General 2010/HP/0344, Matibini also held,
obiter dicta, that by virtue of Act No. 14 of 2002 which amended
section 2 of the English Law (Extent of Application) Act by insertion of
paragraph (e), the entire whole of the 1999 edition of the White Book,
including cases, had been incorporated in our rules and procedures.
He further held that, as such, by statute, Zambian courts are bound
to follow all the rules and procedures followed in England as stated in
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the 1999 edition of the White Book. Hitherto, the White Book merely
filled in gaps in our practice and procedure.
A similar view was taken by the high court (Per Justice Nigel Mutuna)
in OTK Limited v Amanita Zambia Limited and 3 Others
2005/HPC/0199. Justice Mutuna relied on the decision in Ruth
Kumbi v Robinson Kaleb Zulu, SCZ No. 19 of 2009 in which the
Supreme Court held that following the amendment to section 2 of the
English Law (Extent of Application) Act, the entire White Book (1999
Edition) was applicable in Zambia.
The said amendment to the English Law (Extent of Application) Act

under Act Number 14 0f 2002, read (insertion of clause (e): -
“(e) the Supreme Court Practice Rules of England in force until 1999,
provided that the Civil Court Practice 1999 (The Green Book) of England
or any other Civil Court Practice Rules issued after 1999 in England
shall not apply to Zambia except in Matrimonial Causes”.
Similarly, Act No. 15 of 2002 had amended the Supreme Court Act
with the insertion at the end of paragraph (ii) under section 8 of the
following words:
“except the Civil Court Practice 1999 (The Green Book) of England or
any Civil Court practice rules issued after 1999 in England shall not
apply to Zambia unless they related to Matrimonial Causes”.
Section 8 previously read: -

“8 The jurisdiction vested in the Court shall, as regards practice and
procedure, be exercised in the manner provided by this Act and Rules of
Court. Provided that if this Act or Rules of Court do not make provision
for any particular point of practice or procedure, the practice and
procedure of the Court shall be (i) in relation to criminal matters, as
nearly as may in accordance with the law and practice for the time
being observed in the Court of Criminal Appeal in England; (ii) in
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relation to civil matters, as nearly as may be in accordance with the law
and practice for the time being observed in the Court of Appeal in
England”.
Section 10 of the High Court was equally amended by Act No. 16 of

2002, b the insertion of the following proviso:
“Provided that the Civil Court practice 1999 (The Green Book) of
England or any other Civil Court practice rule issued after 1999, in
England shall not apply to Zambia unless they relate to Matrimonial
Causes”.
Section 10 hitherto provided as follows: -

“The jurisdiction vested in the Court shall, as regards practice and
procedure, be exercised in the matter provided by this Act, and the
Criminal Procedure Code, or by any other written law or by such rules
or directions of the Court as may be made under this Act or the said
Code or such written law and in default thereof in substantial
conformity with eh law and practice for the time being observed in
England in the High Court of Justice:”
However, the position has since reverted the pre-2002 amendments,

arising from English Law (Extent of Application)(Amendment) Act No.
6 of 2011, the High Court (Amendment) Act No. 7 of 2011 and the
Supreme Court(Amendment) Act No. 8 of 2011. Thus, in Isaac Lungu
v Mbewe Kalikeka Appeal No. 114/2013, the Supreme Court held:
…We wish to state that the position as put by Counsel for the appellant
is no longer the same with the passing of the English Law (Extent of
Application)(Amendment) Act No. 6 of 2011……English practice and
procedure rules only apply in so far as there is a lacuna in our rules or
practice and procedure. We do not resort to English practice and
procedure when our own rules and procedures are clear and
comprehensive. In Chikuta v Chipata Rural Council, we stated at
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page 243 that the practice and procedure in the high court is laid down
in the High Court Rules, and that where the same are silent or not
comprehensive, recourse should be had to the English White Book.
Further, in Ludwig Sondashi v Godfrey Miyanda (1995-1997) ZR

1, the Supreme Court held that instead of being dismissed, wrongly
commenced proceedings should be treated as if they had been
commenced by Writ of Summons. Also refer to article 118 (2)(e) which
provides that justice shall be administered without undue regard to
procedural technicalities. In Henry Kapoko v The People Selected
Judgement No. 43 of 2016, the Constitutional Court opined;
‘Article 118(2)(e) is not intended to do away with existing

principles, laws and procedures, even where the same constitute
technicalities. It is intended to avoid a situation where a manifest
injustice would be done by paying unjustifiable regard to a
technicality’.
More recently, however, in Road Transport and Safety Agency v

First National Bank Zambia Limited and Josephine Milambo
Appeal No. 127/126, the Supreme Court (Per Mutuna on behalf of
Malila and Mambilima) affirmed the Chikuta case, holding that the
High Court lacked jurisdiction to entertain a claim against the
Appellant as the claim alleged excess or exercise of unauthorised
power and sought an order of mandamus, both of which needed to be
commenced by judicial review and thus declared the high court
judgement, despite finding it sound on the merits, a nullity. The
Supreme Court held that the challenge of the exercise of statutory
functions by a public officer should be challenged by way of judicial
review.
The matter had been commenced by Writ of Summons and the issue
was the failure by the Appellant to seek the consent of the First
Respondent bank before transferring ownership of a vehicle in which
it was the absolute owner. The Supreme Court nonetheless clarified
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that the decision did not imply that all actions against statutory
bodies or public officers could only be commenced by judicial review.
That claims against statutory duty, for instance, could be instituted
by civil action in the private law of tort for breach of statutory duty.
In apparent reference to the New Plast Industries Case (but wrongly

quoting Chikuta), the Supreme Court held that the Chikuta case was
not bad law in so far as it stated that what determines the mode of
commencing an action is the enabling statute and not the claim or
endorsement. But then the Court went on to observe at page J 26,
“Because there is no local legislation which prescribes the mode of
commencement for judicial review, we are left with no choice but to look
at the claim and relief sought in the Court below to determine the
appropriateness or otherwise of the process issued and proceedings”.
It was not clear whether the Act in issue provided for a way of
instituting proceedings and whether judicial review would still apply
had the law provided for a procedure to be followed.
A Writ of Summons could be said to be the default or primary mode

by which civil proceedings are instituted. The rest of the modes are
only used where they are provided for. The following are the different
modes by which civil proceedings may be commenced: -
(a) Originating Summons – applies to matters which under any

written law or rules may be disposed of in chambers. Usually,
such matters will not involve substantial dispute on the facts. A
good example is interpretation of documents. Order 30 of the
High Court Rules stipulates matters that can be disposed of in
chambers. An originating summons should be accompanied by
an affidavit in support while the defendant responds by filing an
affidavit in opposition. It is important to note that originating
summons (which originate or ‘give birth’ to proceedings) are
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different from ordinary summons, which institute interlocutory
proceedings. Interlocutory proceedings relate to matters that arise
in the course of civil proceedings. An example could be an
applicant seeking an interlocutory injunction. They could be
likened to a ‘trial-within-a-trial’ in a criminal trial. However, both
originating summons and ordinary summons, are accompanied
by affidavits. Check the forms appended to the high court and
subordinate court rules for templates. Below is an example of an
originating summons.
IN THE HIGH COURT FOR ZAMBIA 2010/HP/1216

AT THE PRINCIPAL REGISTRY
HELD AT LUSAKA
(CIVIL JURISDICTION)
BETWEEN
CHRISTOPHER SINGONGO PLAINTIFF
AND
MBUNJI MUBYANA 2ND DEFENDANT
ORIGINATING SUMMONS PURSUANT TO ORDER VI RULE 2 HIGH

COURT RULES CAP 27
LET THE PARTIES concerned attend before the Hounaourable Justice ………
on the ….. day of ………… at ……… hours on the hearing of the plaintiff’s
application for: -
(a) Interpretation of the Companies Act No. 10 of 2017.
(b) Determination as to whether section 5 of the Companies Act provides

for levying of penalties.
(c) Declaration that the Registrar has misapprehended the said section 5
by demanding for penalties.
(d) Costs of and incidental to this application.
Dated the ……………… day of ………………………………,……. 2019
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Drawn by: Messrs P.C Chamber
Plot 5, Leopards Road
LUSAKA
PatrickChibwe@gmail.com
Advocates for the plaintiff
To: The Defendant and Its Advocates

Mwenya Chibiliti Legal Practitioners
Church Road
Mwenyachibiliti@ami.com
LUSAKA
The above summons could also be drafted as shown below, with minor
variations.

AT LUSAKA
BETWEEN
AND
ORIGINATING SUMMONS PURSUANT TO ORDER VI RULE 2 HIGH

COURT RULES CAP 27
LET THE Defendant within …… days cause appearance to be entered to this

summons and by this summons he plaintiff claims against the defendant for
the following: -
(a) Interpretation of the Companies Act No. 10 of 2017.
(b) Determination as to whether section 5 of the Companies Act provides

for levying of penalties.
(c) Declaration that the Registrar has misapprehended the said section 5
by demanding for penalties.
(d) Costs of and incidental to this application.
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Dated the ……………… day of ………………………………,……. 2019
LUSAKA
PatrickChibwe@gmail.com
Church Road
Mwenyachibiliti@ami.com
LUSAKA
(b) Petition – A petition is only used where it is prescribed.

Osborne’s Concise dictionary defines a petition as a statement
addressed to the crown (state), a court or public officer, setting
forth facts on which the petitioner bases a prayer for remedy or
relief. An example is a constitutional petition pursuant to Article
128(3) of the Constitution or an electoral petition under the
Electoral Act. Other laws providing for petitions include
Companies Act (winding up of a company) and the Matrimonial
Causes Act (for dissolution of a marriage). A petition may also be
accompanied by an affidavit. The defendant responds to a petition
by filing an answer. Also read Statutory Instrument No. 156 of
1969;
(c) Originating Notice of Motion – may be used where it is

expressly provided for or where no procedure is prescribed e.g.
where the law merely states that you can make an application.
Examples include Order 53 Rule 5 of the Rules of the Supreme
Court of England (White Book) which provides for an application
for judicial review, once leave is obtained, to be made by
Originating Notice of Motion. Equally, once leave is granted, an
application for committal should further to Order 52 of the White
Book be made by motion. Similarly, Rule 3 of the Landlord and
Tenants (Business Premises) Rules and Rule 3 of the Rent Rule
provide for proceedings under the respective statutes to be
instituted by Originating Notice of Motion.
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An Originating Notice of Motion should also be accompanied by
an affidavit while the defendant responds by filing an affidavit in
opposition. It is heard in open court (even though most of the
evidence is by affidavit). The hearing is in open court on affidavit
evidence and the court may call the deponent to court to be
cross-examined.
Below is an example of an Originating Notice of Motion for

Judicial Review.
In the High Court for Zambia 2019/HP/0005

At the Principal Registry
At Lusaka
(Civil Jurisdiction)
Between
Christopher Singongo Plaintiff
and
Crispin Nchobeyi Defendant
ORIGINATING NOTICE OF MOTION FOR JUDICIAL REVIEW

PURSUANT TO ORDER 53 r 5 RSC 1999
TAKE NOTICE that pursuant to the leave granted by the Hon.

Mumba Malila on the 10th of January 2019, the High Court will
be moved on the 10th day of January 2019 at 09 00 hours in the
fore noon as counsel may be heard on an application for: -
(a) ……
(b) ……
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Dated the ………… day of ……………………………………………
2019

LUSAKA

Messrs. H. K. Ndhlovu Advocates
Plot 5, Ngweshi Road
NDOLA
(d) Default Writ of Summons: This is only available in the

subordinate court and only applies to claims for a debt or
liquidated damages. It should be accompanied by an affidavit
verifying debt and an Admission Defence and Counterclaim. Read
more under Order 6 Rule 4 of the Subordinate Court Rules.
(e) Writ of Summons which, as indicated earlier, is the principal

mode by which civil proceedings are instituted. A writ of
summons involves pleadings. In the high court, it is mandatory
for the writ to be accompanied by a statement of claim. The
defendant responds or enters appearance to a writ of summons
by filing a Memorandum of Appearance accompanied by a
defence. A defendant may also file a counter claim. A judgement
in default may be entered where a party fails to enter appearance.
In terms of Order VII Rule 2 of the High Court Rules as read

together with Statutory Instrument No. 27 of 2012, it is now a
requirement for the writ of summons to be endorsed with
plaintiff’s place of residence, occupation and postal and electronic
address. Statutory Instrument No. 27 of 2012 provides that
‘Advocates of a plaintiff suing by an advocate shall endorse
upon the writ of summons the physical, postal and
electronic address of the plaintiff’ . In the case of Standard
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Chartered Bank (Z) Plc v John C. Banda Appeal No. 94/2015
SCZ/8/108/2015, the plaintiff did not endorse the electronic
mail. Consequently, the defendant challenged the writ for being
irregular. The High Court set aside the writ, resulting in an
appeal to the Supreme Court. The Supreme Court noted that
rules of court ought to be complied with and a party who
breaches them does so at his or her peril. The Court noted its
earlier decision in Access Bank (Z) Limited v Group Fire/ZCON
SCZ/8/52/2014 in which it reviewed when and when not a party
in breach of the rules may be allowed to proceed as if no breach
occurred. It then observed: -
‘Yet we are alive to the fact that rules should not be used
like minefields for parties who make fairly inadvertent
mistakes that translate into no tangible prejudice to the
other party. If an irregularity can be cured without undue
prejudice then it is desirable that such irregularity be put
right subject to an order as to costs against the erring
party’.
The Supreme Court cited with approval the case of Leopold

Walford (Z) Limited v Unifreight (1985) ZR 203 in which was
held thus: -
‘As a general rule, breach of a regulatory rule is curable and
not fatal, depending upon the nature of the breach and the
stage reached in the proceedings’.
Following this review and noting that it had the inherent power to
order a party to amend the writ, the Supreme Court then held:
‘…A party in beach of the rules should, however, always
take the initiative to prompt the court by way of an
application before the other party makes its own
application to set aside. In this regard, our approach
regarding a party in breach of rule – which is curable by an
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order following an appropriate application – is the same as
that we have adopted in regard to failure to meet set
timelines. A party who sits back until there is an
application by the innocent party to set aside process does
so at his or her own peril……In case of breach of rules that
do not result in real or serious prejudice or negative
consequences to any party, the court does surely retain the
discretion always as to what order would best meet the
justice of the situation…..
In this case, the Supreme Court had gone ahead to set aside the
High Court Order which set the Writ of Summons aside for
irregularity for its omission of the plaintiff’s address.
The following are noteworthy in relation to a default judgement: -

(i) It is entered on account of defendant’s failure to enter
appearance
(ii) It requires proof of service
(iii) In high court, it can also be entered an account of
failure to file a defence
(iv) It is entered upon filing affidavit showing due services
of writ and acknowledgement
(v) May be set aside if defendant shows that his action has
merit and explains how default occurred
(vi) But must have ‘a real prospect of success’ and ‘carry a
degree of conviction’.
Where there are irregularities with a writ, a defendant may enter
conditional appearance by inscribed the words ‘Enter
Conditional’ on the Memorandum of Appearance. The condition
is that an application is made to rectify the irregularity with the
stipulated period.
Steps in Action Commenced by Writ
23
An action instituted by Writ and Statement of Claim will
generally go through the following steps: -
(a) Step One: File, uplift and serve the Writ, Statement of
Claim and other accompanying documents on the
defendant.
(b) Step Two: the defendant files in a Memorandum of

Appearance (conditional or unconditional), Defence (and
possibly a counterclaim on the plaintiff) and other
accompanying documents.
(c) Step Three: The Plaintiff files a Reply (and possibly a

defence to any counterclaim).
(d) Step Four: Prepare the Bundles of Pleadings (containing

Writ, Statement of Claim, Defence, Reply etc.) and
Bundles of Documents (e.g. letters etc.). Both bundles
have an index with page numbers.
(e) Step Five: Draft the request for setting down the action
for trail and file with the bundles of pleadings and
documents.
(f) Step Six: Court will set a hearing date.
A Writ of Summons involves pleadings and is accompanied by a

statement of claim.
Failure to Defend
The Supreme Court has held in several cases that failure by a
defendant to defend an action does not entail that a plaintiff
should automatically succeed, that the plaintiff should still
24
prove his case. This was the position the Court took in Khalid
Mohamed v The Attorney General (1982) Z.R. 49 and
Clifford Kananja v CNMC Luanshya Copper Mines PLC
Appeal No. 96/2015 SCZ/8/202/2014. Equally, the Supreme
Court has taken the view evidence should be adduced of the
relief sought.
Students are expected to know how to draft documents

relating to the various modes of instituting proceedings,
including accompanying documents and documents filed in
response to a suit. In particular, students should know how
to draft a Writ of Summons, memorandum of appearance,
Statement of Claim and a defence. MORE ESPECIALLY,
STUDENTS ARE ENCOURAGED TO PRACTICE HOW TO
DRAFT A STATEMENT OF CLAIM AND REVIEWING AS MANY
SUCH STATEMENTS AS POSSIBLE.
Students are further implored to read on the lifespan of a

writ and a concurrent writ in the high court and
subordinate court rules. A key element of the writ is the
endorsement of the claim and testing in the name of the
chief justice. Further, the high court rules make it
mandatory that a writ lodged in the high court be
accompanied by a statement of claim.
Students are equally expected to know how to draft an

affidavit. Affidavits mostly accompany interlocutory
applications. Interlocutory applications may take the form
of a motion or a summons. Ensure that you know how to
draft these as well.
25
Where you are the party being sued, it is important to
defend the action or risk judgement in default being
entered.
PLEADINGS
Pleadings are documents exchanged by the parties to an action which set
out the claims made and the defences raised by the parties thereby
clarifying the questions of law and fact in issue.The purpose of pleadings is
to clearly ascertain the controversy between the parties, that is, the matters
to which the plaintiff is seeking relief and the nature of the dispute, as the
defendant is entitled to know what it is that the plaintiff is alleging against
the defendant. Pleadings are essential as they set the boundaries for a case.
Pleadings include the statement of claim, the defence, counterclaim, defence
to counterclaim and reply. There are also pleadings that can be served
subsequent to reply and defence, namely, rejoinder by defendant, surre
joinder by plaintiff, rebutter by defendant, surrebuttal by plaintiff.
The essence of pleadings was clarified in the case of William David Wise v
E.F. Hervey Ltd (1985) ZR 179 in which it was held thus: -
(a) Pleadings serve the useful purpose of defining the issues of fact and
law to be decided;
(b) They give each party distinct notice of the case intended to be set up by
the other; and they provide a brief summary of each party’s case from
which the nature of the claim and defence may be easily apprehended;
26
(c) A cause of action is disclosed only when a factual situation is alleged
which contains facts upon which a party can attach liability to the
other or upon which he can establish a right or an entitlement to a
judgement in his favour.
Study the high court rules on the lifespan of a Writ and a Concurrent
Writ.
Statement of Claim
A statement of claim is an example of a pleading which is very critical in
proceedings instituted by Writ of Summons. The following are noteworthy in
relation to a statement of a claim as a pleading: -
(a) A statement of claim must contain material facts. Material facts have
been defined as facts that are necessary in formulating a complete
cause of action. Facts may be material in so far as they demonstrate
the wrong committed or the injury suffered, thus the extent of
condensation required. What determines material facts is the cause of
action. Thus, if you are alleging negligence, materials facts will be
those that show that a duty of care was owed, breached and that as a
result of the breach, injury was suffered.
(b) Paragraphs on a statement of claim and other pleadings must be

concise. A statement of claim, in particular, should be written in
short, clear paragraphs as the intention is to notify the defendant
what wrong he is alleged to have committed. Thus, it should contain
particulars sufficient for the defendant to defend himself/herself. For
instance, where negligence leading to injury is alleged, the plaintiff
should give particulars of how the defendant was negligent and the
injury suffered. The latter is critical in assessing damages. For
example, where the negligence relates to driving, particulars of
negligence could be talking on the phone, failing to look out for
oncoming traffic, or over speeding while particulars of the injury could
be broken left leg, fracture of the collar bone etc. Further, students
27
should note that statements of claim for particular applications, may
be unique. An example is one for defamation.
(c) More importantly, pleadings must disclose a cause of action. The

Osborne’s Concise Law Dictionary (8th Edition) defines a cause of
action as a fact or combination of facts which gives rise to a right of
action. It is essentially the wrong you are alleging. Such a wrong will
be one recognized in law - this could be in the law of torts, contract or
other branches of law Refer to William David Wise v E.F. Hervey Ltd
as to when a statement of claim is said to have been disclosed. A
statement of claim that does not disclose a cause of action cannot
stand.
The test for a good pleading is: “By reading the pleading, can the
reader have a clear conception of the case being put before the court?
In Christopher Lubasi Mudia v Sentor Motors Limited (1982) Z.R.
66. Justice Chirwa observed:
‘Where the pleadings are at variance with the evidence adduced in

court, the case fails since the plaintiffs case is completely recast without
actual amendment of the statement of claim, and not only will the court
record be incorrect as a reference thereafter but the other party will be
unable to meet the case having had no correct notice’.
(d) The general layout of the statement of claim is that it starts with a
description of the parties, followed by the alleged wrong doing, the
injury suffered and then the prayer. The parties should be described
in the context of the legal suite. The paragraphs should be numbered
consecutively. The prayer, which reads, ‘AND the plaintiff claims for’ is
not numbered. T

AT LUSAKA
28
BETWEEN
AND
ATTORNEY GENERAL 1ST DEFENDANT
CRISPIN NCHOBEYI 2ND DEFENDANT
STATEMENT OF CLAIM
1. The plaintiff is and was at material times a student at University of

Lusaka.
2. The 1st Defendant is sued pursuant to the provisions of the State

Proceedings Act Chapter 71 of the Laws of Zambia.
3. The 2nd Defendant was at the material time a police officer serving in
the Zambia police service holding the rang of inspector.
4. On or about 20th January 2019, the Plaintiff was apprehended and

assaulted by the 1st Defendant.
5. The Plaintiff was thereafter detained, initially for three days at the
University Teaching Hospital where he was hospitalised as a result of
the aforesaid assault and then for a further three days at
Chambokaila prison.
6. The Plaintiff was thereafter released without charge.
7. By reason of the foregoing, the plaintiff has suffered personal injury,

loss, pain, humiliation, consequential loss and expense.
Particulars of Injury
(a) Fractured left leg
(b) Broken right arm
(c) Loss of consciousness
Particulars of Special Damage

(a) Medical expense - K 5, 000
(b) Loss of business – K 6, 000
AND the plaintiff claims for:

(i) Damages
(ii) Special damages
29
(iii) Any other relief that the Court may deem appropriate
(iv) Costs
Dated the …… day of ……………………………… 2019

LUSAKA
To: The 1ST Defendant

Attorney General’s Chambers
Church Road
LUSAKA
The 2ndDefendant and Its Advocates

Messrs. H. K. Ndhlovu Advocates
Plot 5, Ngweshi Road
NDOLA
In an exam question requesting for a statement of claim to be drafted,

the statement of claim should accurately reflect the following:
(a) The particulars of the court and reflect cause number
(b) Parties and caption
(c) Start with a description of parties
(d) Then state the wrong committed - Cause of action
(e) Thereafter indicate injury suffered, including consequential
loss, where applicable
(f) Remedies, including special damages, where applicable
(g) Dated
(h) Party drawing the document and to whom addressed.
Students are urged to familiarise themselves with special

damages. Unlike general damages which relate to injury that is
reasonably foreseeable, special damages should be expressly pleaded
for. Special damages arise from consequential loss – loss which was
not foreseeable but is nonetheless a consequence of the injury
suffered e.g. loss of earnings or medical bills on account of injury
suffered.
30
CONSOLIDATION OF CAUSES
To avoid multiplicity of actions, two or more actions may be consolidated
into one provided the parties are the same, there are common questions of
law or fact and the respective reliefs arise out of the same transaction or
series of transactions.
Rationale: If tried by two different courts, there is the possibility of having

two different or conflicting judgments. There must be an order by a
magistrate or judge consolidating the two matters. Usually the person filing
first will be the plaintiff in the consolidated action and the other party the
defendant. A defendant with a claim against the plaintiff should file a
counterclaim to avoid commencing a separate action which would lead to
multiplicity of actions. [Note: the defendant’s counterclaim is a separate
cause of action from the plaintiff’s claim and the defendant can win his
counterclaim even if the plaintiff loses his claim].
In Development Bank of Zambia and KPMG Peat Marwick v Sunvest

Limited and Sun Pharmaceuticals Limited (1995 – 97) ZR 187, the
Supreme Court held that a multiplicity of actions occurs when the same
parties litigate the same subject matter before different courts. In this case,
the court disapproved of multiple actions between the same parties, over the
same set of facts and advised parties to raise whatever issues they wished to
raise, between them, in one action. In the case of Kelvin Hang’andu &
Company v Webby Mulubisha (2008) ZR 82 Vol 2, it was held:
31
‘Once a matter is before court in whatever place, if that process is
properly before it, the court should be the sole court to adjudicate all
issues involved, all interested parties have an obligation to bring all
issues in that matter before that particular court’.
The Supreme Court had also held in Rosalyn Mukelabai and Mongu Meat
Corporation Ltd (2003) ZLR that common questions of law or fact and
rights or relief arising out of the same transaction should be consolidated
into one action. Further, in BP Zambia Plc v Interlard Motors Limited
(SCZ Judgement No. 8 of 2003), the supreme stated: -
‘A party in dispute with another over a particular subject should not
be allowed to deploy his grievances piece meal in scattered litigation
and keep on hauling the same opponent over the same matter before
various Courts. The administration of Justice would be brought in
disrepute if a party managed to get conflicting decisions which
undermine each other from two or more different judges over the same
subject matter’.
Read more on consolidation of actions in the rules.
32
SERVICE OF PROCESS
Refer to Order 7 SCR and Order 10 HCR. It is essential that court
documents are served in accordance with the laid down rules. Proper service
is ‘personal service’ i.e. serving the documents on the person. Where this is
not possible, leave of court should be sought to serve by substituted service.
The application is made by summon accompanied by affidavit.
As a general rule, any person is capable of serving documents on a

defendant or respondent. An advocate or his legal assistant tin the law firm
can serve as can the client. The court bailiff can be asked to serve the
process at a fee. The Sub-ordinate Court rules require that the person
effecting service to explain the contents of the documents he is serving to
the defendant, see r.1(2). Once served it is a legal requirement that an
affidavit of service should be filed into court as proof of service. It is
advisable that the person on whom the documents are served engrosses the
documents (i.e. signs them) and puts on the date of service.
In case the defendant is an individual and the document is a writ or default

writ of summons, the documents must be personally handed to the
defendant who must acknowledge service by appending signature to the file
copy of the document. If personal service on the defendant is not possible, it
is permissible to leave the document with any other person who resides with
the defendant. The person so receiving must also acknowledge service by
33
engrossing the file copy. If the defendant refuses to accept service, throw the
documents at his feet and in an affidavit state that this happened.
If the defendant is a Limited Liability Co. service should be at the registered

office or principal place of business - details can be found at the Company
Registry. [Note e.g. if serving on ZANACO you cannot serve at any branch.]
Service on a partnership is effected by service on any one of the partners
(r.9). Service on a prisoner or one in an asylum – service is on the O-i-C.
(r.10). Time of service - between 6 and 18 hours, Monday to Saturday but
not on a Sunday, Good Friday or Christmas Day.
Substituted Service
If the address of the defendant is unknown, the plaintiff can apply for leave
from court (ex parte application by summons with a supporting affidavit
where you must explain the efforts made to serve personally and why you
are now applying to serve by advertisements) to effect service by any of the
following ways:
(a) Advertising in a Newspaper that is in circulation in the area where the

defendant is living or working. You need to draft a summary of the
case – Times of Zambia calls it a legal notice - notifying the defendant
that he has a case at court and give a brief summary of the case
against him. Note: you cannot advertise on the TV or radio. No special
provision for substituted service by advert in a paper on a blind
person.
(b) Registered Post/DHL/UPS - only possible if the P.O. Box of the

defendant is known. The letter must be clearly marked “registered
mail”. You should obtain a receipt from the PO indicating that you
delivered a registered letter to the PO for delivery to the defendant.
You can also serve by DHL or UPS and in the summons you should
indicate that you intend to serve by DHL or UPS. I.e. ….. on the
hearing of an application on the part of the plaintiff for leave to serve
34
writ by DHL (or registered mail, or by advertising once in the Times of
Zambia as the case may be).
Along with the summons and the affidavit you need to draft an Order for the
magistrate to sign once he gives you leave to serve by substituted service.
If the defendant lives outside Zambia, you need to file a special application
to serve the documents outside jurisdiction, even if you know the physical
address of the defendant.
Proof of Service
No adverse action shall be taken against a party on account of default of
appearance or takin any required action unless proof of service is shown.
Proof of service will generally be made through an affidavit of service. In
Patmat Legal Practitioners (Sued as a Firm) and Chipo Zyamwaika
Mudenda Ndele and 2 Others, Appeal No. 68/2015, SCZ 62 of 2017, a
judgement of the Industrial Relations Court, entered following the non-
attendance of the Appellant and 3rd Respondents, was set aside due to lack
of proof that they had been served the notice of hearing. The Supreme Court
held: -
‘The Court should have asked for proof that the notice had in fact
been served on the Appellant and the 3rd Respondents. This could have
been done by, for instance, filing an affidavit of servicer some other
evidence of acknowledgement of receipt of the notice. In the absence
of proof of service, we hold that the lower court misdirected itself
when it proceeded to hear the matter in the absence of the Appellant’.
The Supreme Court further held: -

‘Applying our decision in the case of John R. Ng’andu (1988 – 1989)
ZR 197 and taking a leaf from Lord Denning’s Judgement in the case
of R v Appeal Committee of County of London Quarter Session, Ex
35
Parte Rossi (1956) 1 ALL ER 670, we hold that in the instant case, in
the absence of proof of service of the notice of hearing for the 3rd
September 2014, the lower court should have given the case a fresh
date of hearing and ordered service, and proof of service of the notice
of hearing for the fresh date. We, accordingly, hold that the lower
court misdirected itself when it proceeded to hear the matter in the
absence of proof that the Appellant had been notified of the date of
bearing’.
INTERLOCUTORY PROCEEDINGS
Several applications may be made after commencement of process and
before judgement. Such applications are referred to as interlocutory or
chamber applications as they are often head in chambers while the
proceedings are interlocutory proceedings. They are proceedings incidental
to the settlement of the principle dispute.
An interlocutory application may be made by ordinary summons

accompanied by affidavit or made orally by motion. It may be made ex-
partes, in which case the court renders its decision upon hearing only one
party or inter partes. Where the summons is ex-partes, this will be indicated
in the caption. Otherwise, it is an interpartes summons. Unlike an ex-partes
summons, an inter-partes summons need not be qualified with the words
inter-partes in the caption.
Ordinary Summons
An ordinary summons is different from an originating summons which
institutes court proceedings. An example of an interlocutory application is
an a summons for interim attachment of property. The caption in the
summons should indicate what the summon sis for and the authority,
36
pursuant to which it is made. Below is an example of an ex-partes summons
for interim attachment of property.

AT LUSAKA
BETWEEN
AND
EX-PARTE SUMMONS FOR AN ORDER FOR INTERIM ATTACHMENT OF

PROPERTY PURSUANT TO ORDER XXVI RULE 1 OF THE HIGH COURT
RULES CAP 27
LET COUNSEL for the Plaintiff attend before the Honourable Judge
Mr/Mrs/Ms (or Mr/Madam) …………………….. in chambers on the ……. day
of …………………………… 2019 at …………. hours in the ……….. noon or
soon thereafter on the hearing of an application on the part of the Plaintiff
for an order that the defendant’s movable property namely a Deep Freezer
and Range Rover Registration Number BAD 400 with a total estimated value
of K 1, 200 be attached pending determination of summons for an order
directing the defendant to show cause why they should not furnish security
to fulfil any decree that may be given against the said defendant by this
Honorable Court.
Dated the ……………… day of ………………………………,……. 2019

LUSAKA

Church Road
LUSAKA
37
Further, Order 53 Rule 8 of the High Court Rules requires that an
interlocutory application be accompanied by skeleton arguments, stating the
facts, law and authorities relied upon with copes of such authorities, where
possible. In Bellamona v Ligure Lombarda Limited (1976) ZR 267 (SC),
the Supreme Court held:
‘It is always necessary, on the making of an application for the
summons or notice of application to contain a reference to the Order
or rule or other authority under which the relief is sought’.
Motion
A mere motion, like an ordinary summons, is different from an originating
motion. The word motion refers to an oral application made to a judge in
open court. Applications by motion will often also be preceded by a notice of
motion accompanied by affidavit. Motions could relate to several different
matters, including a motion to adjourn or, like in the example below, to raise
a preliminary issue.
IN THE HIGH COURT FOR ZAMBIA 2016/HPA/036

HOLDEN AT LUSAKA
IN THE MATTER OF THE COMPANIES ACT CHAPTER 388 OF THE

LAWS OF ZAMBIA AND IN THE MATTER OF AN APPEAL FROM THE
REGISTRAR AND CHIEF EXECUTIVE OFFICER OF THE PATENTS AND
COMPANIES REGISTRATAION AGENCY
BETWEEN
TAHER AMMAR MOHAMED KHALIL 1st APPELLANT
CLEMENT WONANI 2nd APPELLANT
AND
REGISTRAR AND CHIEF EXECUTIVE OFFICER RESPONDENT

OF THE PATENTS AND COMPANIES REGISTRATION AGENCY
38
NOTICE OF INTENTION TO RAISE PRELIMINARY ISSUE PRUSUANT TO
ORDER 14A RULE 1 OF THE RULES OF THE SUPREME COURT OF
ENGLAND (1999) EDITION
TAKE NOTICE that at the hearing of this matter, the Respondent intends
to raise the following preliminary issues for determination by the Court,
namely that: -
(a) Whether the Originating Process - ‘Notice Originating Motion of Appeal’

is the correct mode for invoking section 379 of the Companies Act No. 10
of 2017.
(b) Whether the Registrar and Chief Executive Officer of the Patents and
Companies Registration Agency may be sued as a party in the manner
employed by the Appellant.
Dated the ………. day of …………………………………………… 2016
Drawn by: The Patents and Companies

Registration Agency
PACRA House,
LUSAKA
It is common for exam questions to require the drafting of a summons. The

summons should reflect:
(a) particulars of the court and cause number;
(b) parties and appropriately captioned – the authority p[pursuant to
which the summons is made should be indicated in the captioned.
The caption should also indicate what the summons is for e.g.
SUMMONS FOR AN INTERIM INJUNCTION PURSUANT TO ORDER
……. ;
(c) indicate particulars of the alleged wrong doing and remedies;
(d) should be dated and indicate the party drawing the document and to
whom it is addressed; and
(e) should generally comply with prescribed format including being
dated and showing the party drawing it and at whom addressed.
39
A summons may be ex-partes or inter partes. Where it is inter partes, the
captioned will reflect thus: EX-PARTES SUMMONS FOR ….. On the other
hand, the words ‘INTER-PARTES….’ Are not added. Thus, a summons
starting merely ‘SUMMIONS FOR …. ‘ is assumed to be an inter partes
summons. The word summons is also used interchangeably with
‘APPLICATION’. Thus, instead of ‘SUMMONS FOR ….’, it could read ‘AN
APPLICATION FOR …..’.
As observed, interlocutory applications often take the form of summons

accompanied by affidavit. For example, if you are acting as counsel for the
Defendant and the plaintiff has delayed in prosecuting the case, you may
apply to dismiss action for want of prosecution by summons as follows: -
HEADING ACCORDING TO THE COURT
SUMMONS TO DISMISS ACTION FOR WANT OF PROSECUTION
LET ALL PARTIES concerned attend before the Honourable Justice

………………..on the ………………… day of ………..2013 at ……….hours as
counsel for the defendant can be heard on the application to have this
action dismissed for want of prosecution [Can add affidavit and costs].
Dated the .. day of ………………….. 2017
Drawn by: Messrs Chintu Legal Chambers

Plot 5 Lubu Road
Lusaka
Advocates for the Defendant
To: The Plaintiff and his advocates

Knneth Muyambango Chambers
Plot No. 4, Addis Ababa Drive
Lusaka
40
As observed, summons should generally cite the authority. There will be an
affidavit in support of this summons. It important to note that in court
documents, the physical address is preferable to a postal address as
documents have to be served on the person. The person to be serves has to
be located.
Examples of Notices that may be filed into Court

As the name suggests, a notice notifies the other party about an issue. It
may be a mere notice about some development or a notice of motion. The
latter notifies the other party of an intention to move the court. If, for
example, a party intends to seek an adjournment at the next hearing, such
party may file a notice of motion to adjourn. Similarly, if you have been
retained as counsel, you may file a notice of appointment to notify the other
party. The notice will be as follows: -
NOTICE OF APPOINTMENT OF ADVOCATES
TAKE NOTICE that the undersigned Advocates have been appointed to have
conduct of this action for the Plaintiff.
Dated the day of 2006
ZIALE Chambers
Plot 1234
Church Road
Lusaka
To: the Defendant and his advocates

Lex Chambers
Lubu Road
41
Lusaka
Notice of Appointment of Advocates - litigant had no advocates but now he

appoints you to represent him once the case proceeds. [E.g. if there is more
than one plaintiff or more than one defendant, one of which did not initially
appoint an advocate to act on is behalf, but is now appointing one.] Notice of
Change of Advocates is filed when a new firm is taking over from another
firm who is ceasing to act for a particular client. Note: If there was an
advocate and now you have been appointed, you can file a Notice of
Appointment but this is frowned upon as it introduces ambiguity i.e. if could
be that more than one firm has been appointed to work for the litigant
rather than on replacing the other. However, if a second firm is being
appointed, then it is correct to file a Notice of Appointment and not a Notice
of Change.
Second, file a Notice of Intention to Proceed
NOTICE OF INTENTION TO PROCEED
TAKE NOTICE that 30 days hereafter the Plaintiff intends to proceed with
his action.
Dated the day of 2006
ZIALE Chambers
Plot 1234
Church Road
Lusaka
To: the Defendant and his advocates
Lex Chambers
42
Lubu Road
Lusaka
Other Key Interlocutory Proceedings
Third Party Proceedings [O. 12 SCR]

After commencement, the defendant may want to contend that a third party
needs to contribute of indemnify him against his liability under the action.
Here, the onus is on the defendant (it is not the task of the plaintiff to do so)
to join the third party to the action via Third Party proceedings (instituted by
Notice - see below) in order for him to obtain that contribution or indemnity.
The defendant t must demonstrate that he has a claim against the third
party e.g. where he is sued for causing a road accident and he attributes
that accident, in part or fully, to a third party. He can apply via Third Party
proceedings to have the third party made a defendant in the action if he
believes the party is (partially or fully) responsible for the damages claimed,
so that he should contribute or indemnify the defendant for the damages
due to the plaintiff. .
IN THE SUBORDINATE COURT OF THE 2006/SSP/0001

FIRST CLASS FOR THE LUSAKA DISTRICT
HOLDEN AT LUSAKA
BETWEEN
PETER BWALYA PLAINTIFF
AND
FRED BANDA DEFENDANT
JOHN ZULU THIRD PARTY
THIRD PARTY NOTICE PURSUANT TO ORDER 12 OF SCR
TAKE NOTICE that this action has been brought by the plaintiff against the
defendant for payment of K 20 m being damages arising from a road traffic
43
accident that occurred on 3rd October 2006 and that the defendant claims
against you:
(a) That he is entitled to contribution from you to the extent of K 10 m.

(b) ….
(c) …. [SEE Form 66 Schedule 1 SCR]
The grounds of the Plaintiff’s claim are:
That you caused the said accident.
AND TAKE NOTICE that if you dispute the plaintiff’s claim against the
defendant or the defendant’s claim against you, you must within five days
after service of this notice upon you inclusive of the day of service, deliver to
the clerk of the court, by post or otherwise, a defense together with a copy
thereof, and appear on the day fixed for the hearing of the action when the
plaintiff’s claim against the defendant and the defendant’s claim against you
will be heard and determined.
In default of your appearing on the day of hearing, you will be deemed to

admit:
(a) the plaintiff’s claim against you (sic) the defendant; and
(b) The defendant’s claim against you; and
(c) Your liability to contribute to the extent claimed or indemnify the
defendant; and
(d) The defendant’s right to the relief or remedy claimed in paragraph ©
above; and
(e) The validity of any judgment in the action
And you will be bound by the judgment in the action which may be enforced
by execution against your goods.
Amending Proceedings [O.15 r.1 SCR]
44
Process may be amended by the court on its own motion or on application
by a party. Almost everything can be amended. Thus, the pleadings can be
amended by changing the relief sought, a paragraph in the Statement of
Claim or the Defence, correcting an error on the face of a document e.g. the
misspelled name of a party. If the pleadings are not amended and the court
proceeds to hear the case, the court is likely to render a judgment based on
defective pleadings and it is the lawyer’s duty to correct such errors. Proper
drafting is imperative. The proper way to amend is by way of Summons, but
for simple amendments e.g. correcting spelling or errors that do not go to
the root of the case, a viva voce application is fine. Note: If counsel notices
errors after uplifting the pleadings but before service he can amend by
writing “Amended without leave of the Court” in red at the top corner of the
pleading in question and doing the amendment, also in red.]
45
INTERIM INJUNCTIONS
Refer to Order 27 rules 1 to 5 of the HCR. of Cap 27 (i.e. O.27 r. 1 to 5 HCR.
Cap 27), Order 23 SCR and Order 29 of the RSC. 1999.
An injunction may be restrictive or mandatory and interim or perpetual. A

restraining injunction restrains a party from doing an act mandatory
injunction, compels a particular act to be done. Perpetual injunctions
include a Mareva injunction and an Anton Pillar Order. In interim injunction
is an equitable and thus discretionary remedy granted pending
determination of the matter.
Principles Upon which Injunctions are Granting

It is essential to note that an interim injunction is a remedy that both
temporary and discretionary. Its objective is to protect the plaintiff against
violation of his or her rights which may not be adequately compensated for
in damages. The leading case on injunctions is the British case of American
Cynamide Co. v Ethicon Ltd. [1975] AC 396 or [1975] 2 WLR 316. In
that case, the following principles were laid down: -
(a) there is a serious question to be tried;
46
(b) damages would be adequate compensation to the plaintiff for his
interim loss pending trial and, if so, whether the defendant in a
position to pay them;
(c) the plaintiff is able to give an undertaking to compensate the

defendant for any interim loss suffered pending trial should the
injunction be granted, or at the eventual trial if the court finds that
the plaintiff was entitled to an injunction;
(d) where the balance of convenience lies should an injunction be

granted.
Lord Dilock put it in the following words at page 509: -
The principles enunciated in the America Cyanamid case have been adopted
in Zambia and applied in several cases, foremost amongst which are Shell
and BP (Z) Ltd. v Conidaris & Others [1975] ZR 174 and Turnkey
Properties Limited v Lusaka West Development Co and Others (1984)
ZR 85.
47
In the Shell and BP case, the Supreme Court held, inter alia:
(a) 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; mere inconvenience is not
enough. Irreparable injury means “injury which is substantial and can
never be adequately remedied or atoned for by damages, not injury
which cannot possibly be repaired.”
(b) Where any doubt exists as to the plaintiff’s rights or if the violation of
an admitted right is denied the court takes into consideration the
balance of convenience to the parties. The burden of showing the
greater inconvenience is on the plaintiff.
(c) The rights of the parties in this case being in dispute, and the
potential loss to the defendant being far greater than the
inconvenience the plaintiff would suffer if left to rely on its remedy in
damages, this was not a proper case for the court of an interlocutory
injunction.”
Similarly, in the case of Turnkey Properties v Lusaka West Development

Company Ltd, B.S.K. Chiti (Sued as Receiver) and Zambia State
Insurance Corporations (1984) Z.R. 85 held thus: -
48
In Moonga Jane Mungaila- Mapiko (Suing on Behalf on the Traditional
Council of the Mungalila Royal of Establishment), John Muchabi v
Victor Makaba Chande (2010) Z.R. 416 (7), Justice Patrick Matibini
observed thus: -
(a) In an application for an interim injunction, the primary issue to be

considered or assessed at the outset is whether or not there is a
serious question to be tried.
(b) The requirement that there must be a serious question to be tried

comes to the proposition that the claim must not be frivolous or
vexatious and must also have some prospects of succeeding.
(c) The question of damages may however not be relevant in a case where
they are not the main issue. For instance, where the use or misuse of
property rights is in question
In Hondling Xing Xing Building Company v Zamcapital Enterprises

Limited (2010) ZR, Justice Matibini also held thus: -
‘The question of balance of convenience is considered in three stages.
First, the governing principle is that of whether the claimant would be
adequately compensated by an award, succeeding at the trial, and
whether the defendant would be able to pay for the award, no
injunction should be granted, in the absence of these, however strong
the claimant’s case’.
More recently, in the case of Law Association of Zambia & Another v

Ngosa Simbyakula and 63 Others 2016/CC/0011, the Constitutional
Court, quoted with approval the following from Snell’s Equity, 29th Edition
summing up the principles under which injunctions are granted as laid
down by Lord Diplock: -
49
Also look at the case of Tommy Mwendalema v Zambia Railways Board
(1978) Z.R. Further, in Hillary Bernard Mukosa v Michael Ronalson
(1993-1994) ZR 26, the court held: -
“An injunction will only be granted to a plaintiff who establishes that
he has a good and arguable claim to the right he seeks to protect”.
In Meanwood Property Development Corporation Limited v History

Makers Zambia Registered Trustees 2017/HP/1135, the high court
declined to grant an injunction on grounds that there was no serious
question to be tried. The plaintiff, in its writ of summons, did not allege any
wrong doing but merely sought an injunction to restrain construction works.
The high court further held that an application for an injunction could not
be made in isolation, It was noted thus: -
“..having examined the statement of claim and the affidavits for an
order of prohibitory injunction, I have failed to appreciate the basis
for this application for an order of prohibitory injunction. I say so
because it is trite law that an application for an order of
interlocutory injunction is not in itself a cause of action but is
dependent on a pre-existing cause of action. Lord Diplock in the case
of Siskina (Owners of Cargo Lately Laden on Board) and Others v
Distos Compania Naviera (1979) A.C. 210 at 256 put it aptly when he
50
held that “A right to claim an interlocutory 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
amenable to the jurisdiction of the court”. What this holding means,
which I fully subscribe to, is that injunctions are only remedies and
should only be granted if the applicant has a substantive cause of
action. In other words, an injunction cannot exist in isolation but is
incidental to and dependent on the enforcement of a substantive
right.
The principles governing injunctions could be summarised as follows:
(a) There must be a serious question of law to be determined in the

main action.
(b) The court will look at the balance of convenience between the
parties.
(c) The court will consider I\whether damages are a

sufficient/adequate remedy (if the party will receive sufficient
money in damages as redress, the court will refuse injunction).
(d) The court will consider if the right to relief is clear. I.e. there
must be a solid case on which you are basing your case. The
case must not be vague.
In summary, the following can be said about interim injunctions: -

(i) An order compelling or restraining some action.
(ii) In an interim relief pending determination of matter and

equitable, thus discretionary,
51
(iii) Instituted by summons accompanies by affidavit and usually
accompanied by certificate of urgency and an order.
(iv) There must be a serious question of law to be determined in the

main action.
(v) The court will look at the balance of convenience between the
parties.
(vi) The court will consider I\whether damages are a

sufficient/adequate remedy (if the party will receive sufficient
money in damages as redress, the court will refuse injunction).
(vii) The court will consider if the right to relief is clear. I.e. there
must be a solid case on which you are basing your case. The
case must not be vague.
(viii) Authorities: American Cynamide Co. Ethicon Ltd. [1975] AC

396 or [1975] 2 WLR 316. Shell and BP (Z) Ltd. v Conidaris &
Others [1975] ZR 174, Turnkey Properties and Lusaka West
Development Co. etc.
(ix) Applicant should make an undertaking to pay damages
Refer to the Rules and Dr. Patrick Matibini’s article published in

Volume 40 of the Zambia Law Journal of 2009 under the title ‘The need
for the Remedy of an Injunction in the Protection of Fundamental
Rights and Freedoms’.
Applying for an Injunction

The application for an interim injunction is made by summons accompanied
by affidavit. It is also standard practice to file an Order to be signed by the
Court in the event that the injunction is granted. Considering that
injunctions are by nature applications that require urgent action, the
52
application for an injunction is often accompanied by a certificate of
urgency. Students are should familiarise with how to draft the
summons, affidavit, order and certificate of urgency.
An Order will;
(a) have a statement of the order sought;
(b) have a “Penal Notice” i.e. the defendant must be made aware of what
he may suffer if he ignores the order; and
(c) must contain an “undertaking” i.e. where the party requesting the
order undertakes to pay damages if, in the opinion of the court, the
injunction ought not to have been applied for.
An order will look like this: -
Heading
Ex Parte Order for an Interim Injunction
UPON HEARING counsel for the plaintiff and UPON READING the affidavit
in support of the application and the plaintiff by his counsel having
undertaken to pay the defendant damages in the event that the court finds
that the injunction ought not to have been granted:
IT IS HEREBY ORDERED that the defendant either by himself, his

servants, agents or whosoever be is restrained from evicting the plaintiff
from House No. 123 Roma Lusaka until the hearing of the application inter
parte8 on the day of 2006 at hours.
Dated this day of 2013

_____________________
8
Injunction will not be permanently granted until affording the other side a chance to be heard.
53
Magistrate
This order was drawn by: MWP Chambers
Lex House
Cairo Rd.
Lusaka
Advocates for the Plaintiff
To: The Defendant9
Mr. XYZ
House 123
Roma
Lusaka
Penal Notice
TAKE NOTICE THAT in the event that you the within named defendant and
agents or servants elect to disobey this order (or injunction) you will be cited
and imprisoned for contempt of court.
An Order of Court should generally reflect the following:

(a) The particulars of the court and reflect cause number
(c) Provide provision for judge to sign
(d) Undertaking as to damages
(e) To whom directed
(f) Penal notice
It is important to note that the order will vary depending on whether the
application was made inter partes or ex-partes. An ex-partes order will
generally indicate when the inter-partes hearing will take place.
Where an application requires urgent action to be taken, (e.g. an injunction)

it is standard practice to also lodge a certificate of urgency. A certificate of
9
MUST be directed and served on the DEFENDANT personally and NOT his advocates otherwise the Penal
Notice will not apply.
54
urgency is generally lodged by counsel seised with the conduct of a matter.
Below is an example of such a certificate.
IN THE HIGH COURT FOR ZAMBIA 2016/HPA/036

HOLDEN AT LUSAKA
BETWEEN
TAHER AMMAR MOHAMED KHALIL 1st APPELLANT
CLEMENT WONANI 2nd APPELLANT
AND
REGISTRAR AND CHIEF EXECUTIVE OFFICER RESPONDENT

PATENTS AND COMPANIES REGISTRATION
AGENCY
CERTIFICATE OF URGENCY
I, Clavel Hachimama, a Zambian Advocate of Messrs. N. Ngabo Legal

Practitioners and Counsel seised with the conduct of this matter on behalf of
the Plaintiff hereby certify that this is a matter of extreme urgency and must
be heard immediately as the Defendant is about to sell Lot 20/k to unknown
people
Dated the ………. day of …………………………………………… 2016
Drawn by: Messrs. N. Ngabo Legal Practitioners

1st Floor, Godfrey House
LUSAKA
55
INTERIM ATTACHMENT OF PROPERTY
Refer to Order 26 of High Court Rules. Interim attachment of property is
sometimes confused with interim injunctions. It restrains disposal of
property with the aim of obstructing or delaying the execution of order. The
objective is to prevent a defendant from disposing off assets that may be
relied upon in executing a judgement against him. The property to be
attached has to be identified and its value ascertained. The concerned
property is only attached upon failure to furnish security. The property is
attached pending the determination of the suit. The application is made by
summons accompanied by affidavit.
56
AFFIDAVITS
Affidavits constitute one of the modes for adducing evidence. As already
seen, affidavit generally accompany affidavit evidence. In chamber matters,
witnesses do not adduce oral evidence, but through affidavits. An affidavit is
sworn by a person referred to as the deponent. Apart from the opening
paragraph which starts ‘I, ………..”, each and every paragraph of an affidavit
is written in the first person and starts with ‘That..’ Where an affidavit
contains exhibits, it will be accompanied by a certificate of exhibits. An
affidavit end with a jurat and closes with a ‘jacket’.
Jurat
Every affidavit ends with a jurat as shown below”.
SWORN by PETER BWALYA10 )

At Lusaka this 6th day of )
June 2006 )
Before me:________________________
Commissioner for Oaths
10
SWORN and DEPONENT’S NAME in capitals and Bold.
57
Certificate of Exhibit(s)
Where documents are exhibited to an affidavit, then the affidavit should be
accompanied by a certificate of exhibits. A certificate of exhibits looks like
this: -

HOLDEN AT LUSAKA
BETWEEN
AND
CERTIFICATE OF EXHIBITS
These are the exhibits referred to in the affidavit of the said Peter Bwalya,
marked “PB1” to “PB6”
Dated this day of 2008
Before me: _____________________________

Commissioner for Oaths
ABC and Associates
10th Floor, Nyumba House
Njila Avenue
LUSAKA
58
The exhibits will be marked by the initials of the deponent i.e. “PB1”, “PB2”,
“PB3” etc. A Certificate of Exhibits is not signed by a deponent but must be
commissioned. The Certificate of Exhibits comes after the page that the
deponent signs. The last document is called the “jacket”.
Jacket
HOLDEN AT LUSAKA
BETWEEN
AND
AFFIDAVIT IN SUPPORT OF …….
ABC and Associates

Njila Avenue
LUSAKA
The “jacket” is attached last with it “facing out”.
Rule 19 - if an exhibit is hand written it must be accompanied by a type

document which must perfectly correspond with the hand written
document. The typed copy must be certified as correct in the affidavit.
ABC and Associates

59
Njila Avenue
LUSAKA
The first four paragraphs and the last paragraph in the affidavit are fairly
standards. Students are required to farmiliarise with how an affidavit and a
certificate of exhibits are drafted and subordinate or high court rules
pertaining to affidavit. Both the High Court and Subordinate Court Rules
provide guidance on how affidavits should be drafted.
Under Rule 20 of both Rules:
(a) affidavit to be headed in the court and in the cause or matter. Caption
will read e.g. AFFIDAVIT OF SERVICE, AFFIDAVIT IN SUPPORT OF
…..
(b) Full name, trade/profession, residence and nationality of the

deponent i.e.
The Affidavit will start:
I, Peter Bwalya, of the City and Province of Lusaka in the Republic of

Zambia do hereby make OATH11 and say as follows:
1. That my full names are as stated above.

2. That I reside at Plot No. 1234; Cairo Road, Lusaka as aforesaid.
3. That I am a Zambian national (or a Zambian by nationality).
4. That I am an accountant by profession, employed by Zambia
Breweries.
(a) The affidavit must be written in the first person i.e. “I” and in
consecutively numbered paragraphs.
11
OATH in capitals. Can say AFFIRMED is deponent on religious grounds refused to swear.
60
(b) Alterations, erasures etc. must be attested by the commissioner for
oaths. For example: I am a Zambian by nationality
(c) The commissioner may refuse to swear witnesses and require that the
affidavit be re-written e.g. if illegible. [But don’t as a lawyer draw up
an affidavit as such or one with many alterations etc. Do another
one!!]
(d) Deponent can mark with his thumb. The commissioner must witness.
(e) Jurat format – the jurat must not be on a separate sheet If the last
paragraph of the affidavit is at the end of the page push it to the next
so that the jurat appears under it. The jurat must state where and
when it was sworn or affirmed. If sworn outside Zambia it must be
sworn before a Notary Public (i.e. a lawyer of over ten years who, in
Zambia applies to the High Court to be a Notary Public and is
appointed as such by the High Court). And not just a Commissioner
for Oaths. E.g.
SWORN/AFFIRMED by PETER BWALYA

At Pretoria this 6th day of
June 2006
Before me:__________________
Notary Public
A notary public has a “seal” and the affidavit is sealed with this seal.
In summary, an affidavit should reflect: -

(a) Particulars of the court and cause number
(c) Accurately reflect details of deponent
(d) Capacity of deponent
61
(e) Start with ‘That…’
(f) Possibly exhibit alleged defamatory articles
(g) Should have a jurat; and,
(h) Should generally comply with prescribed rules on affidavits
In summary, the following are noteworthy in relation to affidavit: -

(a) A form of adducing evidence
(b) Sworn statement deposing facts or written statement in the name of
a person, called the deponent, by whom it is voluntarily signed and
sworn to or affirmed
(c) Option to viva voce evidence
(d) Relied upon in interlocutory applications
(e) Must bear the same name as a Summons
(f) Must state the full name, residential address, nationality and
capacity of the deponent
(g) Paragraphs should be numbered and must be written in first person
i.e. ‘That I reside at …’
(h) Should not contain legal arguments, conclusions etc but rather
facts from personal knowledge of the deponent or facts from a
named source
(i) Ends with a jurat
(j) Sworn before a commissioner for oaths who has no interest in the
matter
(k) May be accompanied by certificate of exhibits and jacket
62
REVIEW OF JUDGEMENT
A judge or magistrate may review his or her judgement in accordance with
the Rules. In Lewanika and Others v Chiluba (1998) ZR 79, the Supreme
Court held thus: -
“Review under Order 39 is a two stage process. First, showing or

finding a ground or grounds considered to be sufficient, which then
opens the way to the actual review. Review enables the court to put
matters right. The provision for review does not exist to afford a
dissatisfied litigant the chance to argue for an alteration to bring
about a result considered more acceptable’.
As for the grounds upon which a reviewed judgment may be set aside, it was
thus held in Robert Lawrence Roy v Chitakata Ranching Company
Limited (1980) ZR 198:
“Setting aside a judgement on fresh evidence will lie on the ground of

the discovery of material evidence which would have a material effect
upon the decision of the court and has been discovered since the
63
decision but would not with reasonable diligence have been discovered
before”.
Relying on the above cases, the Supreme Court held in Fearnought

Systems Ltd v Fearnought Systems (Z) Limited and Another
SCZ/8/018/2015 that review was a very crucial stage that required the
following to be established: -
(a) That fresh evidence has been discovered which would have had a
material effect on the judgement or decision;
(b) That evidence has been discovered since the judgement or decision;
(c) That such evidence could not, with due diligence, have bene
discovered before; and
(d) That such evidence does not comprise events that have occurred for
the first time after delivery of the judgement.
ENFORCEMENT OF JUDGMENTS
Reinforcement of judgment is concerned with the realization of the fruits of
one’s judgement. After judgement, the successful party becomes the
‘judgement creditor’ while the losing party becomes the ‘judgment debtor’.
The mode of enforcement depends on the nature of the judgment made by
the court12.
1. Writ of Fieri Facias (Writ of Fifa)

(a) If the judgment is for the recovery of money it can be enforced by
a writ of Fieri Facias (Fifa) directed to the sheriff and his bailiffs
and is executed by the seizure of the defendant’s movable assets,
except beddings, clothes, pots and plates. The amount of movable
assets seized will depend on the amount to be recovered. If it is
e.g. K 5m, it would be unreasonable to seize goods worth K 10m.
(b) Once the bailiffs have seized the goods, the sheriff will give the
defendant five clear days to pay from the date of seizure. If he does
12
Note: after judgment is entered the plaintiff must give the defendant three days grace period before he can
apply to enforce the judgment.
64
not, the sheriff will proceed to advertise in the papers and in the
advert he will indicate the auction date.
(c) Auction sale is usually done by a government auctioneer and the

proceeds of the sale are remitted to the plaintiff’s lawyers less the
bailiff’s commission, which is 15% of the amount realized from the
sale. Note: if the defendant pays within five days and before the
advert is published, the commission is 2.5% of the amount owed
plus interest, if he pays after the advert goes out but before the
auction, the sheriff’s commission is 7.5% of the amount owed plus
interest.
(d) Once the Sheriff has executed a Fifa, his bailiff will render a
report indicating how far the execution was effective and if
execution failed, the report will still be made and a copy will be
sent to the plaintiff’s lawyer and a copy sent to the court registry.
2. Writ of Elegit
If the execution of the Fifa fails, and the plaintiff has information that
the defendant has immovable property, i.e. a house or warehouse etc.
he can proceed to apply for a writ of elegit. That enables him to take
possession of the property, again through the office of the Sheriff, put
the property on rent (note: he cannot sell the property) and get the
rents and apply them to extinguishing the judgment debt.
3. Judgment Summons
(a) If the defendant has no immovable property, and there is nothing
to seize, apply for a judgment summons before the same
magistrate that entered the judgment.
(b) A judgment summons is supported by an affidavit that

discloses/attests that judgment was in favour of the plaintiff in the
65
sum of K x amount and that execution of the judgment has failed
as the defendant has no goods or property worth seizing.
(c) The purpose of the judgment summons is to examine the

defendant on oath as to his means, which is done by placing the
judgment debtor in the witness box, and the plaintiff’s lawyer will
cross-examine him as to his capacity to pay the judgment debt.
E.g. from his monthly salary in installments, if he is employed.
(d) The Court will proceed to make an attachment order that he pays K
x a month until the debt is paid. If the examination shows that he
has no capacity or means to liquidate the debt, the plaintiff may
proceed to declare him bankrupt (but this will be costly - it is a
High Court action with no prospect of any recovery of money) or
alternatively the Court may send the defendant to prison for e.g. a
week at the plaintiff’s expense (as he is sent there to force the
defendant to pay to the plaintiff what is owed to him and not by the
State upon conviction of a crime), until he indicates how he intends
to pay the amount owed. I.e. sent to prison and after a week
brought back to court to see if he can make an offer e.g. by getting
money from relatives and/or friends.
4. Writ of Possession
(a) This writ is used where judgment is entered for possession of
immovable property in the nature of a dwelling house, warehouse,
agricultural land or undeveloped land that is on title (or in the
process of being on title).
(b) Like a Fifa, this writ is directed to the Sheriff for enforcement or
execution that is done by the Sheriff taking physical possession of
the property minus the contents. After securing the property (e.g.
locking it up), the Sheriff hands it over to the plaintiff and he is
then entitled to his commission (of 5% of the current market value
66
of the property) from the plaintiff. [In practice the plaintiff’s
lawyers will negotiate with the Sheriff a rough value as using a
professional valuer is expensive.]
(c) If the writ is against a dwelling house, the case will usually be:
(i) one where the landlord is trying to regain possession of

his property from a tenant e.g. who has defaulted on
paying rent; or
(ii) where, in a conveyance of the property, the purchaser has

paid the full purchase price but the vendor is refusing to
give up vacant possession; or
(iii) bank or other mortgagee is trying to obtain possession in

a mortgage action when the mortgagor of the property
defaults on paying the amount due to the bank
(commenced by an Originating Summons under O. 30 of
the HCR in the High Court as the value is invariably
above K 30m). In this latter example, the bank will not
just take possession but will also proceed to sell the
property (a mortgage action is about recovery and sale of
land) in order to get back the money owed to it by the
mortgagor. The bank will not use the Sheriff to sell, but
will advertise in the press for interested parties to bid.
There are several SCZ rulings stating that the bank is
obliged to sell at the “best price” and as if the property
was its own. Thus if the mortgagor owes K 90m and the
bank has bids of K 90m, K 120m and K 150 m, the bank
is obliged to accept the K 150m and pay the K 60m
surplus to the mortgagor.
5. Writ of Delivery
67
(a) This is not very common. It empowers the Sheriff to deliver
movable property from A to B.
(b) The judgment must specifically state that the defendant must
surrender a particular item to the plaintiff. If so, the plaintiff can
use a writ of delivery to enforce this judgment.
6. Charging Order
(a) If the judgment is to recover a debt and the defendant has no
goods or means but has a house, instead of issuing a writ of
eligit, the plaintiff can apply for a charging order that creates an
interest in the defendant’s property and once created means
that the defendant cannot dispose of his property without first
taking care of the interest of the plaintiff.
(b) A charging order can also be used in relation to shares held by

a defendant in a company.
7. Garnishee Order
(a) Three parties, the plaintiff, defendant and a third party who
owes or holds money for the defendant.
(b) The plaintiff will first apply for a garnishee order nisi which
requires the third party to show cause why a garnishee order
absolute should not be issued.
(c) A garnishee order nisi is applied for by way of summons to show

cause why a garnishee order absolute should not be issued.
[E.g. the bank may say that the defendant’s account is in the
red or has been closed.] If the bank confirms that the defendant
holds an account that has sufficient funds, the court will make
the garnishee order absolute. The bank will than pay to the
plaintiff the amount of the order.
68
(d) The defendant has no role to play in these proceedings. He is
not allowed to swear any affidavit that he has no funds in the
bank - no collusion between the bank and the defendant is
allowed.
(e) However, the plaintiff cannot go “fishing” and he must disclose

the account number in which the defendant’s money is kept.
How he gets this number is up to him. The plaintiff must
establish that the defendant is a creditor of the third party
(usually a bank).
8. Committal Proceedings
(a) These are common in matters where Government is involved,
as a plaintiff cannot issue a writ of Fifa against government
property. Even if the Government consents but then does
nothing, a Fifa or charging order cannot be obtained.
(b) However, you can recover the money by citing the Secretary to
the Treasury for contempt. He may be thrown into prison until
the debt is paid as the Government budget under the line item
“Compensation and Awards” is supposed to budget for these
judgments made against Government.
Office of the Sheriff

See Cap 37 of the Laws of Zambia
The Sheriff of Zambia is a civil servant who is appointed by the Judicial
Service Commission. Below the Sheriff is the Deputy Sheriff - also a civil
servant and both are based in Lusaka. At district level there are under-
sheriffs, below who are the court bailiffs. The main duties of the Sheriff of
Zambia and his officers are:
(a) to assist courts enforce their judgments; and
69
(b) To serve court documents e.g. writs of summons (but not documents
served for interlocutory applications e.g. an interpleader or summons
to set aside).
In summary, the following are noteworthy about enforcement of judgements.

(i) Concerned with enjoyment of fruits of judgement oe execution of a
judgement
(ii) Enforcement method will depend on the nature of judgement e.g.
‘money judgement’ will be enforced differently from say one for
delivery of goods.
(iii) Applies where judgment debtor does not comply with judgment
(ii) Nature of enforcement dependent largely on type of judgement e.g.
money judgement or money for delivery of item
(iii) Modes of enforcement include writ of fieri farcias (fifa), writ of elegit,
attachment of debts (garnishee proceedings), attachment of earnings
and judgment summons.
Students can also read an article by Justice Mumba Malila in an article

entitled ‘Mocking the Successful Litigant: Legally Sanctioned of Denial
of the Fruits Judgement in Zambia’ publishes in Volume 37 of the 2005
Zambia Law Journal
70
COSTS
Refer to Order 40 HCR and Order 39 SCR. Costs are expenses incurred in
prosecuting a matter. The award of costs lies in the discretion of the court.
Usually, the court will award costs and left to be agreed by the parties, taxed
in default of agreement. Taxation entails working out the costs payable to
the party awarded costs. It is undertaken by a court official (usually the
Deputy Registrar in the High Court).
Where the court decides that costs follow the event, it means that costs will
be borne by the person who is unsuccessful in the action. Where a party
considers that he risks not being paid costs in the event that they are
awarded, such as where the plaintiff resides outside jurisdiction, one may
apply for security of costs. Read on the factors taken into account when
granting security for costs in Isaac Lungu v Mbewe Kalikeka Appeal
No. 114/2013
71
In summary, the following should be noted in relation to costs: -
(i) What are costs – expenses incurred in prosecuting case
(ii) Can be awarded at any stage of the proceedings
(iii) Award of costs Discretionary and not as a matter of right
through as a general rule, are awarded to successful party
(iv) Costs in the cause
(v) Plaintiff’s/defendant’s costs in the cause
(vi) Plaintiff’s/defendant’s costs in any event
(vii) Dismissal with costs
(viii) No order as to costs
(ix) Security for costs
(x) Taxation of costs
APPEALS
An aggrieved party may appeal against Judgement or Ruling by filing a
Memorandum of Appeal. The Memorandum should state the grounds of
appeal. An appeal may be on a point of law or fact or mixed law and fact. It
is essential to note that further to Rule 58 of the Supreme Court Rules, a
party cannot introduce grounds of appeal not included in the Memorandum
of Appeal. For instance, in Clifford Kananja v CNMC Luanshya Copper
Mines Appeal No. 96/2015 SCZ/8/202/2014, the Supreme Court declined
to consider grounds that were later introduced. The Court further noted, in
this case, that it had the power to dismiss an appeal on grounds of non-
compliance with the Rules.
As a general rule, an appellate court will not reverse findings of fact. In

Ndongo v Mulyango and Another (2011) ZR Volume 1 187 the Supreme
Court opined: -
72
“An appellate court will not reverse findings of fact made by a trial
judge unless it is satisfied that the findings in question were either
perverse or made in the absence of any relevant evidence or upon a
misapplication of facts, or that they were findings which on proper
view of the evidence, no trial court acting correctly can reasonably
make”.
Similarly, in Nkhata and Others v Attorney General (1966) ZR 124, the

Supreme Court had held:
“The findings of a trial judge sitting alone without a jury can only be
reversed on fact, when it has been positively demonstrated to the
appellate court that:
(a) By reason of some non-direction of misdirection of otherwise, the
judge erred in accepting the evidence which he did accept;
(b) in assessing and evaluating the evidence, the judge has taken
into account some matter which he ought not to have taken into
account or has failed to take into account some matter which he
ought to have taken into account;
(c) it unmistakably appears from the evidence itself or from the

unsatisfactory reasons given by the judge for accepting it, that
he could have not taken proper advantage of his having seen
and heard the witness; or
(d) in so far as the judge has relied on manner and demeanour,

there are other circumstances which indicate that the evidence
of the witness which he accepted is not credible as for instance,
where those witnesses have on some collateral matter
deliberately given an untrue answer’.
73
Guided by the above cases, the Supreme Court in Charles Mutemwa v
Nkosi Hlazo Appeal No. 212/2015 declined to overturn a judgement of the
high court. Further, an appellant is not allowed to raise new issues on
appeal. In Victor Kampamba Mulenga v Zambia China Mulungushi
Textiles Joint Venture Limited and Another Appeal No. 219/2016, the
Supreme Court observed:
“In the case of Antonio Ventriaglia, Manuela Ventriaglia v Eastern

and Southern Trade and Development Bank (2010) ZR 486 (SC) we did
hold that, a party cannot raise on appeal for the first time, matters
that were not placed before the trial court. This rationale holds true
to the situation now at hand, in the present appeal, where the
appellant sought to raise before the District Registrar, the issue of a
house that was neither part pf the grounds of appeal from the trial
court, the subject of our judgements on the merits dated 12th
September 2013”.
PART II
CRIMINAL PROCEDURE
1. JURISDICTION OF THE COURTS
A. The courts (Criminal Jurisdiction) their functions, Jurisdiction and

Power
B. The term jurisdiction refers to the authority of a court to:
 Accept one to present a case before it

 To decide on maters presented before it
74
 and in Zambia it is set out in the legislation establishing
the court; MIYANDA V THE HIGH COURT 1984 ZR 62
 Section 5 Penal Code cap 87- court’s jurisdiction extends to every

place in Zambia
 Section 6 Penal Code - also have extraterritorial jurisdiction
where:
 Subsection (1) A Zambian does something which is a
crime in Zambia - NGATI AND OTHERS V THE
PEOPLE 2003 ZR 100
 Subsection (2) nationals who partly commit the offence

in Zambia - THE PEOPLE V ROXBURGH 1972 ZR 31
 LIPIMILE AND ANOTHER v MPULUNGU HABOUR

MANAGEMENT 2008 ZR 252
 Subsection (3) cannot be tried if convicted or acquitted
 Section 14 PC– criminal responsibility;

 Below 8 years old (absolute),
 Between 8 and 12 years responsible if shown that he
knew that he ought not to do the act or make the
omission
 Person under the age of 12 years presumed to be
incapable of having carnal knowledge
 Section 20 PC-person not to be prosecuted twice except where

death occurs
C. Three main courts

 Established by provisions of constitution and acts of parliament
 The Subordinate Court- chapter 28
75
 The High Court-chapter 27
 The Supreme Court-chapter 25
 Some criminal cases
o in local courts and
o courts martial -chapter 106: defence act
D. SUBORDINATE COURTS
 Set out by Article 91(1)(d) of Constitution
 Established by the Subordinate Courts Act Chapter 28
 Established by section 3-
 There shall be and are hereby constituted courts subordinate to
the High Court in each District as follows:
- Subordinate Court of the first class to be presided
over by a principal resident magistrate, a senior
resident magistrate, resident magistrate or a
magistrate of the first class;
- Subordinate Court of the second class to be
presided over by a magistrate of the second class;
- Subordinate Court of the third class to be presided
over by a magistrate of the third class.
 Section 7 Subordinate Courts Act-magistrates equal power,

authority and jurisdiction,
 Section 7 of the CPC providing for sentence as follows;

Subject to the other provisions of this Code, a subordinate court of the
first, second or third class may try any offence under the Penal Code
or any other written law, and may pass any sentence or make any
other order authorised by the Penal Code or any other written law:
o a senior resident magistrate shall not impose any sentence
of imprisonment exceeding a term of nine years;
o resident magistrate shall not impose any sentence of
imprisonment exceeding a term of seven years;
76
o magistrate of the first class shall not impose any sentence of
imprisonment exceeding a term of five years;
o Magistrate of the second and third class, shall not impose
any sentence of imprisonment exceeding a term of three
years.
 Section 9 CPC –sentences requiring confirmation by High Court
o first class (other than a Senior Resident Magistrate or a
Resident Magistrate) exceeding two years' imprisonment with
or without hard labour shall be carried into effect in respect
of the excess and a fine exceeding three thousand penalty
units, or imprisonment in default thereof (can levy without
confirmation by the High Court; but such court shall
immediately transmit)
o No sentence imposed by a subordinate court of the second

class, exceeding one year's imprisonment with or without
hard labour and a fine exceeding one thousand and five
hundred penalty units, or imprisonment in default thereof,
o No sentence imposed by a subordinate court of the third
class, exceeding six months' imprisonment with or without
hard labour, shall be carried into effect in respect of the
excess, and no fine exceeding seven hundred and fifty
penalty units
o Section 15(2) CHOMBA V THE PEOPLE (1975) ZR 245

Where the aggregate of consecutive sentences imposed is
above the limit a case must be sent for confirmation of
sentence as it is treated as one sentence
o In practice the state waits until appeal period expires before
submitting case for confirmation.
77
 Section 217 CPC – committal for sentencing
 Section 19 subject to CPC or other legislation in exercise of

criminal jurisdiction
 Section 4 jurisdiction and powers as set by act and within limits of

district
 Section 6 two or more presided over by different magistrates
 Section 69 general rule where offence committed
 section 66- where apprehended in another district
 section 70 where act done or where consequences felt
 section 71 where connected with another offence in
another jurisdiction
 section 72 where district is uncertain
 section 73- where near boundary
 section 75- where doubt
 Section 11 CPC- chief Justice by statutory order specify cases

tried by HC or SRM
 Section 12- practice and procedure in CPC or as set out in other

Act
 Can transfer to other subordinate court
 Section 13-Can transfer to local court
 Part VII of CPC Holds preliminary inquiries for cases triable in

High Court
E. COURTS MARTIAL
78
 Section 86 of Defence Act Cap 106 court martial power to try
person subject to military law under act
o Section 121 limitation of time for trial
 Trial must begin within three years of the commission
of the offence except mutiny and failure to suppress
mutiny
 No more than three months after leaving service
o Section 73 can be charged with civil offence in addition to
offences under the Act
 But cannot be tried for offences like treason, murder,
manslaughter, treason-felony, rape and section 8 of
the Suicide Act when committed in Zambia
F. HIGH COURTS
 Established by section 3 of the High Court Act chapter 27
 Established by Article 94 of the Constitution-
 There shall be a High Court for the Republic which
shall have, except as to the proceedings in which the
Industrial Relations Court has exclusive jurisdiction
under the Industrial and Labour Relations Act,
unlimited and original jurisdiction to hear and
determine any civil or criminal proceedings under any
law and such jurisdiction and powers as may be
conferred on it by this Constitution or any other law.
 ZAMBIA NATIONAL HOLDINGS LIMITED AND UNIP

V ATTORNEY GENERAL 1994 ZR 22- unlike
Industrial Relations Court and Subordinate and local
Courts with limits in penalties and geographical limit,
unlimited but not limitless
 Section 11 CPC-sets out cases triable by High
Court
 The High Court shall be divided into such divisions as
may be determined by an Act of Parliament.
79
 The High Court shall be a superior court of record
and, except as otherwise provided by Parliament, shall
have the powers of such a court.
 Under section 336-337 of the CPC, the High Court has

supervisory powers.
o Part XI CPC-appeals, revision and case stated
o Section 136 of Defence Act cap 106- appeal to court of
appeal which is supreme court
o Section 80 of CPC High Court has power to change venue
of hearing before Subordinate Court where:
 Fair and impartial trial cannot be had in any

subordinate court
 Question of law of unusual difficulty likely to arise
 Need to view scene of crime for satisfactory trial
 Where will be convenient to parties and witnesses
 Expedient to the ends of justice
 May order;
 Other court to try or
 One of higher jurisdiction
 Accused person be committed for trial before
itself
 Every application by motion and affidavit, except by
DPP
 Must give DPP notice
 The Chief Justice may make rules with respect to the practice
and procedure of the High Court in relation to the jurisdiction and
power
80
 Section 4 –High Court Act judges have equal power, authority and
jurisdiction. RAHIM OBAID V THE PEOPLE AND HADEHIM
QUASMI V THE PEOPLE 1977 ZR 119
o MUNDIA SIKATANA V THE ATTORNEY GENERAL 1982
ZR 109-a High Court Judge cannot adjudicate on a matter in
civil case that has been dealt with in a criminal case.
 Section 6 CPC may pass any sentence authorized by law
 Section 9 of the HC Act, HC is a superior court of record
 Section 10 High Court Act, practice and procedure as set out in
CPC in default that by High Court of Justice in England-RAHIM
CASE
 Section 19 High Court Act sits in sessions by the Chief Justice’s

statutory order-currently Lusaka, Ndola, Livingstone, Kitwe,
Kabwe, Mongu, Chipata, Mansa, Kasama and Solwezi.
 Section 22 can transfer cases
 Section 23 and 24- transfer to other judge, Subordinate and Local
Courts
 Appeals from the Subordinate Courts
2. PUBLIC PROSECUTIONS: POWERS AND DUTIES OF THE

DIRECTOR OF PUBLIC PROSECUTION:
 Established under Article 180 of the Amended Constitution

 appointed by the President subject to ratification by the National
Assembly
 Qualified to be appointed to the appointment of a Judge of the High
Court with experience biased towards criminal law.
 DPP has power in any case which the DPP considers it desirable -
81
o to institute and undertake criminal proceedings against any
person before any court (other than court-martial) in respect
of any offence
 MUMBA V THE PEOPLE (2006) ZR 93
 Section143 of the Defence Act Cap 106- Attorney
General handles cases where one convicted by courts
Martial appeals
o to take over and continue criminal proceedings that may
have been instituted or undertaken by any person or
authority; and
o to discontinue, at any stage before judgment is delivered, any
criminal proceedings instituted or undertaken by himself or
any other person or authority.
 Section 81 CPC-nolle prosequi; either filling in court or

stating (subsection 1) or under subsection 2 filling
before the registrar or clerk
Case: DIRECTOR OF PUBLIC PROSECUTIONS v
MBAYO MUTWALA AUGUSTINO (1977) Z.R. 287
(S.C.)
 Section 88 CPC-withdrawal before the subordinate

court consent of the court or on the instruction of the
DPP- if after defence will result in acquittal
 powers may be exercised by him in person or by such public

officer or class of public officers in accordance with general or
special instructions:
o section 82 delegation to Solicitor General and State
Advocates- power to enter nolle –section 81 and committal
proceedings (summary committal ss 253-259 and
proceedings after committal 241-247)
82
o Section 86 CPC appoint public prosecutors who exercise
delegated powers see section
 Section 87 CPC-powers of the public prosecutor; to
appear and plead without any written authority in a
public prosecution or were private person instructs a
lawyer, public prosecutor may conduct and lawyer
operates under him

 not subject to the direction or control of any other person or

authority except Attorney General for general consideration of
public policy,
 also by a legal practitioner.
 powers to take over and discontinue exclusive
 DPP has discretion to prosecute not bound by coroner or police
findings-KAMBARANGE MPUNDU KAUNDA v THE PEOPLE (1990
- 1992) Z.R. 215 (S.C.)
 in some cases law requires that consent of DPP
o Penal Code Cap 87
 wrongfully inducing a boycott- section 92
 seditious practices section 57- section 58 requires
consent
 expressing hatred, ridicule or contempt for persons
due to race, tribe and place of origin-section 70
 proposing violence or breaches of law to assemblies-
section 91
 defaming a dead person section 192
 incest- under sections 159 and 161 required by section
164
 abuse of authority of office –section 99(2)
 possession of offensive weapon or material-section
85(3)
 obscene material-section 177(5)
83
o National Assembly (Powers and Privileges) Act cap 12-section
27
o Contempt of Court (Miscellaneous Provisions) Act cap 38-
section 4(3)
o Suicide act cap 89 section 8(3) complicity in another’s
suicide
o Offences committed by Zambians outside jurisdiction section
59(2) of the Extradition Act cap 94
o Prohibition of uniforms and flags in connection with political
objects- section 3(2) of the Public Order Act cap113
o The Societies Act cap 119- section 32
o Section 31 of the Citizens Act cap124
o ACC Act- section 46
o State Security Act Cap 111-section 14
o Preservation of Public Security Act cap 112-secion 12
o Trading with the Enemy Act cap 114-section 3(6)
o The Rent Act cap 206 section 6(2)
o The Agricultural credits Act cap 224- restrictions on
publication of agricultural charges-section 9(3)
o Attempting to influence decision of local government appeals
board-section 104-by section 106 Local Government Act
chapter 281
o Prosecution for offences committed on an aircraft (other than
offences under the Act)-section 23 of Safety of Civil Aviation
Act cap 445
o Cooperative Society Act cap 397 -false returns section 143
and 171 misdealing with property
o The Standards Act cap 33
o Section 11-unauthorised activities cap 469 The
Telecommunications Act
o Chiefs Act cap 287- section 13
 Section 32 of Societies Act consent by DPP or delegate of Dpp;
Solicitor General or state advocate
84
 CLARKE v THE PEOPLE (1973) Z.R. 179 (C.A.) –effect of absence
of consent
 Section 85 CPC-where law requires DPPs consent a person can be
arrested and remanded in custody or granted bail but no further
action will be taken until consent is obtained
 Section 321A CPC - power to appeal
 OTHER POWERS OF THE DPP
o Section 47 ACC Act- can serve notice to the Commissioner
of taxes to provide information for affairs
Pursuant to the National Prosecutions Authority Act No. 34, the DPPs
Chambers falls under the National Persecutions Authority. The Act;
(a) Creates National Prosecution Authority and outlines its

functions;
(b) Creates a Board chaired by the DPP;
(c) Has broadened the functions of the DPP, mainly of an

administrative nature;
(d) Reiterates the 3 broad powers of the DPP as provided under

Article 180 of the Constitution; and
(e) Establishes Witness Management Fund.
Refer to an Article by Justice Mumba Malila entitled ‘The Shifting Paradigms

in the Fight Against Corruption in Zambia’ published in Volume 43 of the
2012 Zambia Law Journal in which he discusses the potential adverse
effects of the Act on the independence of the DPP.
3. ARREST
85
 Section 18 CPC must touch and confine
 Elements of an arrest-SILUNGWE v THE PEOPLE (1974) ZR 130-
o Physical restraint (actual or conduct suggesting force will be
used to prevent departure) and
o Inform suspect that is arrested
 Does not necessarily mean will be followed with the arrest charging
of a person
 However, must be exercised for the right reasons
 Not right when there is no intention to charge
 Justified by the breach of the law
 There must be reasonable cause-

o That has committed offence
o Is committing an offence or
o Is about to commit an offence-
o IN RE SIULUTA 1979 ZR 14- a person must not be arrested
for the purpose of facilitating investigations
 Reasonable cause is dependant on facts known by the officer at the
time
 Reasonable existence of facts
o LAURENT v WILLIAMS (1963-1964) Z AND NRLR 4- arrest
not illegal where no warrant as long as has reasonable cause
to believe that offence committed
 Test- reasonable man acting without passion or prejudice would
fairly have suspected one to be committing an offence
 Standard lower than evidence to establish a prima facie case
o DANIEL CHIZOKA MBANDANGOMA v THE ATTORNEY
GENERAL (1979) ZR 45- sufficient to show that arresting
officer has reasonable suspicion that person has committed
offence
 Can rely on hearsay evidence
86
 Must communicate reasons either;
o At time of arrest or when reasonably practicable-
o ATTORNEY GENERAL v SAM AMOS MUMBA 1984 ZR 14-
must inform of reasons unless impeded by suspect and
failure to inform amounts to false imprisonment
o No precise language
 Can use force where;
o There is resistance to arrest
o To prevent escape from arrest
o To prevent violent breach of peace
 Person can resist unlawful arrest but cannot use excessive force to
resist
 Police have right to search on arrest to;
o To ensure does not have implements to facilitate escape
o Prevent injury to oneself
 Can also enter premises where suspect was immediately before
arrest without warrant
 Person must be taken to police as soon as possible after arrest
 Section 22 CPC –power to search on arrest and take away
property except necessary apparel
 Section 24 CPC search of a woman
ARREST WITHOUT WARRANT
 Section 26 CPC – Police officers may arrest without warrant for

listed offences and cognizable offences
 Section 31 CPC- arrest by private persons
 Section 2 CPC- defines cognizable offences as those set out in First
Schedule of CPC or as defined in particular law
 Mainly preventative
 Offences under section 27 CPC included
 Arrested person to be presented to court- section 30 and 32
87
 Section 33 CPC-detention of persons arrested without warrant
o M.MUTEMWA V ATTORNEY GENERAL (1979) ZR 251-person
arrested without warrant must be taken to court within 24 hrs
or released on bail if offence not punishable with death

 .Section 35 and 36 CPC – arrest by magistrate
o Section 35 only in cases where offence committed in presence
of magistrate
o Section 36 will only direct where offence is committed in
presence of magistrate
ARREST ON WARRANT
 Section 90 CPC- allows one to institute proceedings by lodging a
complaint
 THE PEOPLE v MWEEMBA (1972) ZR 292
o Criminal proceedings can only be instituted by making a
complaint or bringing to court person arrested without warrant
o Warrant only issued after charge drawn up
 Section 91(1) – proviso warrant will only be issued where complaint
is on oath
 PAUL JEREMIAH LUNGU v THE PEOPLE (1978) ZR 298- only
advocate can prosecute on behalf of complainant
 THE PEOPLE v MUTACHILA (1976) ZR 96-A person can be arrested
for additional offences
SEARCH WARRANTS
 Section 119 CPC- proved on oath that suspects that evidence
proving commission of offence can be collected
 LISWANISO v THE PEOPLE (1976) ZR 277- also that evidence
will become available
4. REMAND, BAIL, POWER IN PARTICULAR CASES.
88
 The release from custody of an accused or convicted person,
who undertakes to subsequently surrender to custody
 Bail is taking sureties by an authorities person for the
appearance of the accused on a certain day at a certain lace
 Surieties must be sufficient in that they must be able to
answer for the same in which they are bonded
 Amount of bail lies within he discretion f examining justice
 Court when granting bail may include conditions it considers
likely for the appearance of the accused
 Bail can therefore be granted in the following;

o Police bond
o Bail pending trial
o Bail pending appeal and
o Constitutional bail.
 Section 33(1) CPC– allows the detention of persons arrested
without a warrant for a reasonable time
o Officer in charge must release if cannot present to
court within 24hrs
o Only offences not punishable by death
o And offences of a serious nature
o Release on bond with or without sureties
o IN RE SIULUTA AND THREE OTHERS (1979) ZR 14
Section 33 must be complied with when evidence has
been collected
 Section 123 CPC
 Treason, Murder offences carrying mandatory
capital penalty
 Misprision of treason or treason felony
 Aggravated robbery
 Theft of motor vehicle and
 Espionage- where DPP places certificate
89
POLICE BOND
 Granted by the officer-in-charge (section 33)

 To appear in court on specific date
 Must execute bond-section 126
 With conditions like sureties or on own recognisance
 Not be granted where arrested on warrant unless there is
provision section 103 CPC
 THE PEOPLE v BENJAMIN SIKWITI CHITUNGU AND
OTHERS 1990-1992 ZR 190
o Police can cancel it before court date
o Court can increase conditions-Section 127 CPC
o Does not cease where one appears in court
 Section 124 officer before whom bond is executed or the
court d may demand additional conditions that are
reasonable in a particular case
BAIL PENDING TRIAL

 Section 123(1)-apply before trial court
 Application ether by summons supported by affidavit or viva
voce
 Main test is the likelihood to attend court
 OLIVER JOHN IRWIN v THE PEOPLE 1993-1994 ZR 54-
factors
o Nature of accusation and severity of punishment
o Nature of evidence
o Independence of sureties
o Prejudice to accused person
o prejudice to state
 Factors in general
o Likelihood to attend trial
o Likelihood to interfere with witnesses
90
o Risk of committing other offences
o nature of charge
o evidence in support of a charge
o punishment for offence
o likelihood of repeating the offence
o likelihood of interfering with witnesses
o in dependence and reliability of the surities
o Whether accused will surrender for trail
o
 Standard is that substantial grounds exist and that court
must be satisfied that will-factors
o Nature and seriousness of offence
o Character and antecedents of offender
o Previous conduct in relationship to bail and
o Nature of evidence against one
 Application is before the trial court
 Can renew application to the High Court
(supervisory power) where denied by the
Subordinate Court
 THE PEOPLE v BENJAMIN SIKWITI
CHITUNGU AND OTHERS 1990-1992 ZR 190
Where denied bail by police can under section
123(3) apply before High Court it is not an appeal-
in practice only allowed when denied in the
subordinate court.
 Cannot appeal to the Supreme Court where denied by High

Court-BUKASA PELU SEKELE v THE PEOPLE 1990-1992
ZR 5
Supreme Court will only entertain application if there
is appeal pending before it
 Section 124- court may demand additional conditions
91
 Section 126-High Court may reduce or vary conditions
imposed by Subordinate Court or police officer
 Section 137- court may demand additional if first
insufficient because of mistake or fraud
 Section 128- surety may apply to be discharged
BAIL PENDING CONFIRMATION OF SENTENCE
 Section 13(1) CPC allows for bail pending the confirmation

of sentence-under section 9
BAIL PENDING APPEAL
 Section 332 CPC after lodging appeal Subordinate Court

may grant bail
 Section 336-CPCwhere one appeals or applies for leave to
appeal High Court may grant bail
 Section 22 Supreme Court Act where High Court refuses to
Supreme Court may grant bail
 Section 123(5)-MAYONDE v THE PEOPLE 1976 ZR 129-
must lodge appeal
 KAMBARANGE MPUNDU KAUNDA v THE PEOPLE 1990-
1992 ZR 215-bail cannot be granted on appeal for cases to
which section 123 CPC applies
 STODDART v THE QUEEN (1)1954 NRLR 288

o Can only be released if there are exceptional
circumstances-
 Likelihood that will have served sentence
by the time appeal heard
 The likely hood of success
92
CONSTITUTIONAL BAIL
 Only made in High Court because Article 28(2) of

Constitution ; High Court has jurisdiction where there has
been, there is, there is likely to be a breach of Articles 11 to
26 alleged
 Article 13(3) Constitution-person arrested or detained on
court order or on suspicion of committing offence when not
released shall be brought before court without delay if not
released and if not tried within reasonable time be released
on bail
 Overrides provisions in CPC restricting bail
 CHENTANKUMAR SHANTAL PAREKH v THE PEOPLE ZR
1995-where unreasonable delay through no fault or
stratagem of accused will be released
5. CHARGES AND INFORMATIONS

 Person arrested and charged with a criminal offence when
presented to court must take plea. Document setting out
offence:
o Called charge in the Subordinate Courts
o Called information in the High Court
o Also referred to generally as an indictment
FRAMING OF CHARGES AND INFORMATIONS
 Sections 134 to 137 CPC set out how both charge and
information should be drawn
 Section 134 CPC- both documents will have a-e

o The commencement
o Statement of offence
o Particulars of offence
93
THE COMMENCEMENT
 Contains information of-
o Which court trying
o Where trial being held
STATEMENT OF OFFENCE
 Section 137(a)(i) nature of the offence, example murder
 Section 137(a)(ii) section or sections creating the offence
 JOSEPH NKOLE v THE PEOPLE 1977 ZR 351

o Reference to wrong section when particulars are correct
makes charge defective but not bad
o Does the accused person suffer any prejudice
PARTICULARS OF OFFENCE
 Section 137(a)(iv)-Examples of format in Second Schedule

CPC
 Immediately after the statement of offence
 Contents;
 Names of accused person(s)
o Error in name does not affect the validity of the charge
o Where name not known can be described as “a person
unknown”-section 137(d)
o Also “alias....”
 Date of offence;
 State in so far as it is known
 Practice- day, month and year
o Where date not known
 “On or about the …..”
94
 “On a date unknown but between the…. And
the…..”
o Can be crucial in certain cases
 Legislation may have not come into force
 defilement cases-victim may have turned 16
o Must be on single date but for continuing offences can be

on several dates
 In noncompliance cases- “ on and since the…..” and
 Conspiracy cases- “on divers dates between the…..”
 Time not necessary but essential in some cases like

burglary
o Section 301- burglary is house breaking during the day
time
o Section 42 of the Liquor Licensing Act Cap 167 prohibits
sale of alcohol during permitted hours; section7(2) bar
can only sale between 10 in morning and half past 10
 Place where offence committed

 Practice town, district, province and country
 CDDD- road essential-section161 of Road Traffic
Act offence must be committed on public road
 Section 42 of Liquor Licensing Act prohibits
holder of restricted licence from having sprits on
premises without reasonable excuse; section 16
holder cannot have spirits
 Role of parties not indicated as accomplices or principles or

aiding or abetting
o Section 21-counsel, procure, aid, abate or omits to do for
the purpose of enabling
95
 Intent section137(g) not necessary to state intent to defraud,
deceive or injure unless s ingredient of offence
 Age of victim unless is an ingredient of offence
o defilement
RULE AGAINST DUPLICITY
o SHAMWANA AND SEVEN OTHERS v THE PEOPLE 1985

ZR 41
 Duplicity matter of form and not evidence
 Section 52 of the penal Code allows offences under
chapter 12 to be proved by overt acts
o THE PEOPLE v MAKHOKHA 1967 ZR 173
 Two sections creating separate offences in
statement of offence
 Burglary and theft exception
 Conspiracy and attempt different
o NSAMA AND OTHERS v THE PEOPLE 1976 ZR 171

 Should not charge with conspiracy where one
charged with actual offence
o each count must contain only one offence
o if it alleges more than one then it is bad for duplicity
o bad for duplicity where

 more than one offence
 more than one date
 more than one item stolen
 more than one victim
o where the is duplicity one can apply to quash but courts
will not where it can be amended
96
JOINDER OF COUNTS
 section 135 CPC

o in some cases lawful to join two more counts against one
accused person in a single information or charge sheet
o this the case where
 charges founded on the same facts
 they form a series of offences
 are offences of a similar character
 Section 135(2)-a statement is set out in a count where more

than one offence is charged
o FLUCKSON MWANDILA v THE PEOPLE (1979) ZR 174
o Where more than one count they shall be marked
consecutively
 Section 135(3)- can apply to be tried separately if accused

person will be embarrassed
o R V CHAKOPA MAULU AND NELSON CHEMBELA 5
NRLR 208-ALFRED KALUMBA- wanted to call co
accused as witness but could not compel to do so. similar
to current section 157 CPC
JOINDER OF ACCUSED PERSONS

 section 136 CPC
o this may either be by
 naming two accused persons in one count or
 accused persons individually in separate counts
o words “jointly and whist acting together”
o these are
 persons who commit the same offence in same
circumstances
97
 persons who commit the offence and those who
abate
 different offence in course of same transaction
 theft related offences chapter XXVI to XXX of penal
Code
 counterfeiting offences chapter XXXVII of Penal
Code
OBJECTIONS TO A CHARGE OR INFORMATION (INDICTMENT)
 indictment preferred in breach in breach of sections 134, 135,

136 and 137 CPC
 where there are time limits for preferring charges
o Section 219 CPC-offences with maximum punishment of
six months and or fine not exceeding one thousand five
hundred penalty units in the subordinate court must be
charged within 12 months.
 charge not known by the law
 court has no jurisdiction
o section 11 CPC- cases triable in High Court
o section 85(1) CPC-where consent not obtained
o section 138 CPC- where already convicted or acquitted
 section140 not where consequences are unknown
 Penal Code- allows for murder charge even
after prosecution for assault
 section 141 CPC where acquitting is not competent
court
THE PEOPLE VS PETROL ZAMBWELA 2002 ZR
45-subordinate court has no power to acquit when
conducting PI
o charges a person immune from prosecution
98
 Articles 43(2) and (3) Constitution person
holding or a person who held office of President
 Section 14 Penal code –immature age
 Diplomatic Immunities and Privileges Act
cap20
Section 3 make article 31 of the Vienna
Convention on Diplomatic Relations applicable
to Zambia. – Immunity from criminal jurisdiction
of receiving state
o Where objections court can
 Quash or
 amend
QUASHING A CHARGE OR INFORMATION (INDICTMENT)

 section 274 CPC only where charge or information does not
disclose offence punishable by the law and cannot be amended
to state offence
 convicted or acquitted
 immune
AMENDMENT OF A CHARGE OR INFORMATION (INDICTMENT)
 section 273 CPC Information

 section 213 CPC Subordinate Court at any stage before
accused is required to make defence
 court can upgrade, substitute or include new count
 KAMBARANGE MPUNDU KAUNDA v THE PEOPLE 1990-1992
ZR 215
o Court, prosecution or defence can apply to amend
o Nature of amendment and when
 SHAMWANA AND OTHERS v THE PEOPLE 1985 ZR 41
99
o Amend in line with evidence
o No injustice if given opportunity to recall witnesses
 purpose-
o to correct a formal defect or
o as a result of evidence
o dependant on-
 timing of amendment and
 risk of injustice
 procedure on amendment
o JOHN BANDA v THE PEOPLE 1970 ZR 14
 Where there is amendment plea should be retaken
and right to recall witnesses explained
 The effect of the omission of material particulars (where no
objection or amendment during trial)
o ALAKAZAMU v THE PEOPLE 1973 ZR 31

Charged with theft with another but the words “jointly
and whilst acting together with other persons unknown”-
lack of reference did not make particulars defective as is
not ingredient of offence
o HARRISON ZIMBA v THE PEOPLE 1970 ZR 101

Charged with attempted house breaking, omitted the
words “with intent to commit a felony”- found to be
material defect as particulars did not disclose offence
o MUTALE v THE PEOPLE 1973 ZR 15

Espionage charge omitted the words “for purposes
prejudicial to the safety or interests of the Republic”-
indictment did not disclose an unknown offence but it
described a known offence with incomplete particulars
OVERLOADING OF A CHARGE OR INFORMATION (INDICTMENT)
100
 MULWANDA V THE PEOPLE 1976 ZR 133
o Not fair for accused or court to charge with 37 counts, call
87 witnesses and 89 exhibits
7. THE TRIAL PROCESS GENERALLY

A criminal trial is generally as follows: -
(a) Opening speech by prosecutor (optional)
(b) Calling of evidence by the prosecution;
(c) Close of prosecution case;
(d) Consideration of case to answer;
(e) Opening speech by the defence (optional);
(f) Calling of evidence by defence;
(g) Close of the defence case;
(h) Closing speeches;
(i) Judgement.
The first part from (a) to (c), is left to the prosecution to make out its
case and is thus referred to the prosecution’s case. Only if the
accused is found with a case to answer is the accused required to
make his or her defence.
 TRIAL
o Calling the case
 Open to public excerpt
o Section 76 CPC interlocutory, prejudice to public
safety or trial of a juvenile
o Section 121 Juveniles Act –juvenile witness offences
against morality
o Section 120 Juveniles children not allowed(other
than infant in arms), except witness
o Section 15 of the State Security Act
101
 Case called-section 191 CPC; must proceed in
presence of accused
 Prosecutor and defence counsel put themselves on record
 Accused asked language he intends to use if not English
interpreter provided-section 195 evidence given in
language not understood must be interpreted
 Accused asked to confirm name and address
 Charge read out: both statement and particulars of
offence
 Section 356 CPC In the case of a cooperation appears by
a representative
o TAKING PLEA
 Accused invited to respond after each and every count is
read
 section 160 CPC where accused does not respond court
must enquire whether accused is capable of making a
defence
 section 161 CPC court to enter plea of not guilty
o Section 17 CPC accused medically examined-
 MALITA BANDA v THE PEOPLE 1978 ZR 223-

incapacity to make a defence under section 161(1) cannot
result in special finding under section 167
 where accused incapable of taking plea enter plea of not
guilty
o MUSITINI v THE PEOPLE 1975 ZR 53-plea
of not guilty where mute of malice or
visitation of God
 MBAYE v THE PEOPLE 1975 ZR 74- compliance
mandatory whenever it arises under section 160 and
court cannot send accused for treatment must proceed
102
 THE PEOPLE v NJOVU 1974 ZR 60-deaf mute must be
represented.
 THE PEOPLE v BANDA 1972 ZR 307 and THE PEOPLE
v MWABA 1973 ZR 271-the question of insanity can
arise even in cases where one is capable of making a
defence
 STEWART v THE PEOPLE 1973
If case requires consent of DPP certificate presented
to court or case adjourned for presentation of
certificate
 Where more than one each and every one must respond to
each count
 Accused must personally plead not sufficient for counsel
to indicate that his client intends to plead guilty
 Court records plea of guilty or not guilty
 Where represented lawyer indicates whether it is
according to instructions
 Accused can plead guilty to some counts and not
guilty to others
o PLEA OF GUILTY
 Can plead on own volition or as a result of a plea
agreement –
 section 7 of the Plea Negotiations and Agreements Act
no 20 of 2010 Section 4 –plea negotiations can be
initiated by a public prosecutor or the accused person at
any time before judgment
o The accused person undertakes to plead guilty to
an agreed offence and fulfil other obligations
o Section 19 grant of legal aid to a person
wishing to negotiate a plea
103
o Section 5- sets out the prosecutors’ obligations are
to
o withdraw or discontinue the original charge
o To accept the accused persons plea to lesser
charge
o Section 6 the prosecutor is also obliged to inform
the accused person of the right to legal
representation and will only negotiate through the
lawyer.
o section 9 whenever an agreement has been entered
into the court must be informed in open court or in
chambers were good cause exists
 Accused invited to confirm particulars of offence
o SHAMPETA AND ANOTHER v THE PEOPLE
(1979) ZR 168
for a person to plead guilty they must appreciate
the nature of the offence and admit sufficient facts.
 Where there is statutory defence and accused is
unrepresented rule of practice is that court must explain
MWABA v THE PEOPLE (1974) ZR 264
 Prosecutor invited to present statements of fact
o includes medical reports
o public analysts report
o ballistics report
o post-mortem report
 Section 7 Pre-Negotiation Agreements Act the plea
agreement Will be in writing and will contain the following
information
o The original charge
o The new charge
o The statements of facts
o A statement that the accused had been
informed of his rights
104
o The rights and obligations of the state and
the accused persons under the agreement
o It will also be signed by public prosecutor, the
accused and his lawyer
 statement of facts only on those where pleaded guilty

 accused asked if facts true and correct
o THE PEOPLE v JOHN KAPALU KANGUYA 1979
288
a plea must not be equivocal. Each and every
fact must be admitted. Admission of the facts
will not validate equivocal or imperfect plea
especially where not represented
 confirms and /or indicates which ones not correct
 court considers whether disputed facts go to the root of
the admission
o if they do not court still records a plea of guilty
o may actually amend the facts to take care of the
disputed facts
o if goes to the root of the admission records a plea of
guilty
o THE PEOPLE v MASISSANI 1977 ZR 324
 Where facts vital to a conviction
disputed plea of not guilty should be
entered. But does not matter if not vital
 court considers whether statement of facts discloses an
offence, where does not enters plea of not guilty
o THE PEOPLE v PATEL 1968 ZR 167
facts must support the charge, where they do not
prosecutor must clarify or amend or court enter
plea of not guilty
 section 10 Pre-Negotiations Agreements Act the court
is not bound to accept a plea agreement except where
105
non-acceptance would be contrary to the interests of
justice
 Sections 11 and 12 Pre-Negotiations Agreements Act
sets out the factors the court should consider before
accepting the agreement and the grounds on which an
agreement can be can refused
o The accused person has not been induced
o The accused person understands
subsistence, nature and consequences of the
plea agreement
o There is factual basis on which the agreement
has been made
o Acceptance of plea would not be contrary to
the interests of justice and public interests.
o An agreement that is contrary to interests of
justice will not be accepted
o An agreement whose facts do not disclose an
offence will not be accepted
o Where the accused person does not confirm
the agreement, it will not be accepted
o Rejection of an agreement does not prevent
the parties from negotiating another one
o Where the agreement is not accepted trial
proceeds on the original charge
 on recording a plea of guilty court also convicts
 prosecutor invited to indicate if there are previous
conviction
 accused lawyer invited to mitigate
 court passes sentence usually indicating why has arrived
at particular sentence
o THE PEOPLE V CHOTOO LALA 1974 ZR 201
Plea can be withdrawn at any stage before sentence
after which becomes functus official
106
o TITO MANYIKA TEPULA v THE PEOPLE 1981 ZR
304
o Within discretion of court to allow but for good and
sufficient grounds
 Section 15 and 16 Plea Negotiations and Agreements
Act - a party to a plea agreement can withdraw from it
where,
o The accused person was improperly induced,
has breached the terms of the agreement or
has made a misrepresentation
o The Prosecutor was misled on material fact by
accused person or his lawyer or where
accused was induced
 Pre-Negotiations Agreements Act
o section 8 requires the state to inform the victim of
the reason why the agreement was entered into and
its substance as soon as practicable
o The victim is also entitled to be present in
court when the agreement is considered
o Section 16 Evidence made available in a plea
negotiation agreement cannot be used in any
criminal or civil proceedings
o Section 17 an application can be made to seal
records of a plea negotiations or agreement
o PLEA OF NOT GUILTY

 prosecutor calls first witness
 there may be object to competence of witnesses-section
151 CPC and section 128 of Juveniles Act cap 53- spouse
being called as witness
 other witnesses remain outside
o MWABA v THE PEOPLE 1969 ZR 61-
107
A witness will not be disqualified from testifying
merely because they were in court during the
testimony of other witnesses
 witness sworn or affirmed-PHIRI V THE PEOPLE (1975)
ZR 30- where witness is non-believer can affirm
o if child of tender years voire dire
o Procedure in section 122 of the Juveniles Act
 Summoning witnesses section 143 CPC
o Section 144 CPC can issue warrant were ignores or
145 CPC where has information that is unlikely to
attend
 witness led in evidence
o evidence in chief
o cross examined accused or defence counsel
(counsel cross examine in the order of the accused
persons they represent in the absence of agreement)
o SIKOTA v THE PEOPLE 1968 ZR 42
Accused persons in the order that they
appear cross examine
o re-examined on issues raised in cross examination
o court may ask to clarify during or after
 no order in which witnesses must be called but danger of
hearsay
 all expert witnesses must be called except medical
o Section 191A document by medical officer can be
produced without the maker
o Section 192 affidavit of public analyst
 Court can issue a commission for the examination of a
witness- section 152
o Magistrate can apply for the commission section
154
 Can also produce affidavit using mutual legal assistance
108
 witness not limited to oral testimony may also refer to
things and documents-identifies exhibit during testimony
o by describing features
o if author or person whose has had custody can
produce exhibit
TRIAL WITHIN A TRIAL
 To determine admissibility of confession statement
 Accused cannot elect to remain silent
o SUBMISSION OF NO CASE TO ANSWER

 defence makes the first speech
NGOMA v THE PEOPLE (1972) ZR 42- court should not
allow state to close its case and address the court before
defence has submitted on case to answer
 followed by prosecution
 defence reply

CASE TO ANSWER
A case to answer is also what is referred to as a prima facie case. The test
applied in determining whether an accused has a case to answer is whether
a reasonable tribunal could convict on the evidence before the court. An
accused not found with a case to answer is acquitted.
Section 206 of the CPC provides: -

“If, at the close of the evidence in support of the
charge, it appears to the court that a case is not made
out against the accused person sufficiently to require
him to make a defence, the court shall dismiss the
case, and shall forthwith acquit him.”
Section 207;
“………at the close of the evidence in support of the
charge, if it appears to the court that a case is made
109
out against the accused person sufficiently to require
him to make a defence, the court shall then hear the
accused and his witnesses and other evidence, if
any……” 4
In THE PEOPLE V. JAPAU (1967) Z.R. 95 Justice Evans, J. stated: -

“…………I now have to rule upon the defence submission
that the accused has no case to answer. The test to
apply is well-known and was succinctly stated by
Parker, L.C.J., in the Practice Note published in (1962) 1
All ER 448 …………in short the test is:
(a) there is a case to answer if the prosecution evidence
is such that a reasonable tribunal might convict upon it
if no explanation were offered by the defence.
(b) A submission of no case to answer may properly be
upheld if an essential element of the alleged offence has
not been proved, or when the prosecution evidence has
been so discredited by cross-examination, or is so
manifestly unreliable, that no reasonable tribunal could
safely convict on it. 5
110
In the case of THE PEOPLE v WINTER MAKOWELA AND ROBBY
TAYABUNGA (1979) Z.R. 290 (H.C.), the court held: -
“……a submission of no case to answer may be properly
made and upheld where there has been no evidence to
prove an essential element in the alleged offence and
when the evidence of the prosecution has been so
discredited as a result of cross examination or so
manifestly unreliable that no reasonable tribunal could
safely convict on it….”
Justice Chali, in THE PEOPLE V JAMES KAWANDA 2011[UNREPORTED]

also observed: -
“On the Supreme Court authority in the case of
Mwewa Murono.v. The People (2004) Z.R. 207, the court
can make a finding of no case to answer if there is no
evidence to prove the essential elements of the offence
alleged and therefore the accused’s guilt, or when the
evidence adduced by the prosecution has been so
discredited that no reasonable tribunal can safely
convict on it.” 6
111
The Supreme Court of Zambia, on the other hand, in the case of MWEWA
MURONO v THE PEOPLE (2004) Z.R. 207 (S.C.) which was cited in the
James Kawanda case held inter alia:
“In criminal cases, the rule is that the legal burden of
proving every element of the offence charged, and
consequently the guilt of the accused lies from beginning
to end on the prosecution. The standard of proof must be
beyond all reasonable doubt. A submission of no case to
answer may properly be and upheld:-
(a) When there has been no evidence to prove the
essential element of the alleged offence; and
(b) When evidence adduced by the prosecution has been so
discredited that no reasonable tribunal could safely
convict on it.
If an accused person is convicted as a result of an error
of the trial Court in thinking that there is a prima facie
case, the conviction cannot stand. It must be quashed.
In a 2013 case of THE PEOPLE v MALIZANI TEMBO Judge Chashi

adopted the legal rule in the Japau case and further cited a recent Supreme
Court Judgment on the subject matter in the case of THE PEOPLE V THE
PRINCIPAL RESIDENT MAGISTRATE, EX PARTE FAUSTIN KABWE AND
AARON CHUNGU where it was held inter alia as follows:
112
“There is no requirement under Section 206 of the Criminal
Procedure Code that the Court must give reasons for acquitting
an Accused person: That it must merely appear to the Court. The
converse therefore must also be true that where the Court finds
an Accused with a case to answer it must merely appear to the
Court that a case has been made out.
A finding of a no case to answer is based on the Courts
feelings or impressions and appearance of evidence”.
The Supreme Court also opined in PENIAS TEMBO V THE PEOPLE:

“It is mandatory for a court to acquit an accused at the close
of the prosecution case if the facts do not support the case
against him, and no evidence led, thereafter, can remedy the
deficiency in the prosecution evidence” .
o RULING ON CASE TO ANSWER

 can find with case to answer
o same offence
o lesser offence
o different offence- invite or recall witness
 court can acquit
o no case to answer
o THE PEOPLE V WINTER MAKOWELA AND
ANOTHER (1979) ZR 290
o THE PEOPLE v JAPAU 1967 ZR 95
submission of no case to answer properly made and
upheld where
o essential elements of offence not proved
o prosecution evidence discredited in cross
examination
o a reasonable tribunal cannot convict
o CASE FOR THE DEFENCE
113
 accused advised on rights
o sworn statement
o unsworn statement
o can remain silent
o call witnesses
 where accused person is unrepresented court has duty to

explain statutory defence- CHANDA v THE PEOPLE
(1968) ZR 58
 SICHOTE v THE PEOPLE (1975) ZR 32-but cannot do so

on the ground that counsel is inexperienced.
 accused first to give evidence
o SHAW v THE QUEEN 1963-64 ZR 167
o BARROW AND YOUNG v THE PEOPLE 1966 ZR
43- The accused person must give testimony before
his witnesses
o SIKOTA v THE PEOPLE 1968 ZR 42
First accused person gives evidence first and cross
examined by fellow accused in order of appearance
then by prosecutor
o if more than one first to cross examine if in person
or represented by different lawyers
 first accused person calls all witnesses before next gives
evidence and calls witness
 HASWELL MVULA v THE PEOPLE (1963-64) Z AND
NRLR 171- the defence must support allegations they
make in cross examination with evidence
o case in reply
o judgment
o previous conviction
o reports and mitigation
 social welfare reports
114
 advocate mitigates
o sentence
SUBORDINATE COURT TRIAL (CPC)

 PART 6 OF THE CPC deals with trials before the subordinate courts
o Sections 197-221
 Section 200-trial in the presence of the accused person
unless dispensed with under section 99
 Section 99-attendance can be dispensed with for
offences only attracting a fine or 3 Months
imprisonment
 Must be in writing or by counsel
 Where fine not paid can summon
 Where previous convictions not admitted can
summon
 Section 202 – adjournments no more than 30 days and if
in custody 15 days
 Section 203-for non-felony can proceed in absence of
accused but conviction can be set aside
 Section204-
 plea
 plea of not guilty
 refusal to plead
 Section 205 plea of not guilty-the trial can cross examine

witnesses by self if not represented
 Section 206 acquittal- when the court can do it
 Section 207-208 defence
 Explain the charge again and
 The rights of the accused person
 Accused must be the first to give evidence before his
witnesses
115
 Section 209 submissions-prosecutor submits first
followed by the defence counsel where (calls no witnesses)
 Only accused gives evidence in defence
 Accused gives unsworn evidence
 Remains silent (s. 212)
 Section 212 where does not give evidence immediately

prosecution sums up and is followed by defence
 Section 210 evidence in reply
 Section 214- court can

 Convict or
 Acquit or
 Make an order
COMMITAL FOR SENTENCE TO HIGH COURT

 Section 217 committal for sentence to High Court
 Where accused is not less than 17 years
 Antecedents and character are such that greater
punishment be inflicted or minimum sentence is
higher than
 Section 218
 Record sent to high court
 Court proceeds as if had convicted him, thus appeal
lies in the Supreme Court
 THE PEOPLE v OSTAIN NKAUSU AND ANOTHER 1979 293
o Sets out principle but was before amendment of section 217
 CHOMBA V THE PEOPLE (1975) ZR 245
o Section 217(2) where one receives consecutive sentences the
total of which is more than the maximum sentence, the case will
not be committed to the High Court for sentencing.
TRIAL BEFORE THE HIGH COURT

116
Trial before the High Court is after a preliminary inquiry or summary
committal
 PRELIMINARY INQUIRY
A preliminary inquiry is also referred to as committal
proceedings. The objective of a preliminary inquiry is to
ascertain as to whether a matter merits being committed d to
the high court for trial.
o Section 222 by any subordinate court

o Section 223 whenever case not triable by the Subordinate
court or is triable by the High Court in section 10 or 11
 Sub-section (3)-will not hold one if information signed
by DPP is presented
o Section 224 procedure;
 Charge read procedure explained but no plea
 Prosecution witnesses called examined, cross-
examined and re-examined
 Witnesses statements read and asked to confirm and
then signed by witness and court plus reporter
 Prosecutor closes case defence submit followed by
prosecutors reply
o Section 225 –medical evidence can be presented without
witness being called if author is medical office or Government
analyst.
o Section 226-cannot object to a charge on ground that for
defect in substance or form or for variation between evidence
and charge
 Where court of view that misled can adjourn for
purpose of recalling witnesses
o Section 228-where evidence discloses offence
117
 Accused invited to make statement, does not plead or
put up a defence
 And call witnesses
 Can reserve the right to make a statement and call
witnesses to trial
o Section 229- right to address court
o Section 230-discharge
 THE PEOPLE v PETROL ZAMBWELA 2002 ZR 145-
there is no provision in the CPC for an acquittal during
a Preliminary Inquiry
o Section 231- test sufficient evidence to put accused on
his trial committal for trial
o Section 232- summary adjudication where evidence
discloses lesser offence
 Since plea not taken may need to take plea again
before recall of witnesses
o Section 233-accused and witnesses bound over
 Conditionally
 Unconditionally
SUMMARY COMMITTAL PROCEDURE
o Section 254-DPP can issue certificate

o Section 255-where certificate is issued a Preliminary Inquiry
should not take place or should be abandoned
 ATTORNEY GENERAL v EDWARD JACK
SHAMWANA AND OTHERS 1981 ZR 12-section 255
prohibits the continuation of a Preliminary Inquiry
when DPP issues certificate
THE TRIAL
o Section 272-Arraignment by information
118
 Section 223 allows for joining of a person who was not
committed if was not discovered
o Section 276- plea
o Section 277-plea in bar
o Section 278- refusal to plead
o Section 280 -plea of guilt
o Section 286-additional witnesses
 233-witnesses bound over but can call one who wasn’t a
witness during a preliminary Inquiry
 234-refusal to be bound over can result in imprisonment
o Section 288-reading of depositions
o Section 152- issuance of a commission
 153 parties may examine
 Section 154 magistrate may apply to the high court
o Section 290 –statement of accused person
o Section 291-close of prosecution case
o Section 292-the defence
o Section 294 evidence in reply
o Section 296-accused not giving evidence
8.JUDGMENT
 Section 168 CPC-should be pronounced in open court
o whole judgment read
o accused be brought to court
o absence of party will not invalidate judgment
 section 353 CPC-provision that irregularity in
procedure will not invalidate finding or order of court
unless results in substantial miscarriage of justice
 section 169 CPC- contents of judgment
o prepared by presiding justice
o points for determination
o decision and reason for decision
o offence convicted of and sentence
119
o Where acquittal offence acquitted and words directing that
accused is being set at liberty
o Must be dated and signed
 DASHONI V THE PEOPLE (1966) ZR 58
Failure to sign a judgment is an irregularity but is
curable as there is no miscarriage of justice
 Section 169A CPC- where judge or magistrate is ill, dies or
relinquishes or cesses to be another can deliver
 Section 302 CPC court may receive such evidence to help it pass
sentence
 NYIRONGO V THE PEOPLE (1972) ZR 290-where judgment is
lost appeal must be allowed
9. MOTION IN ARREST OF JUDGMENT
 An accused person or his advocate may move the court to arrest

judgment in a case tried on an information
 Section 298- CPC provides that;
o The accused person may, at any time before sentence, whether

on his plea of guilty or otherwise, move in arrest of judgment,
on the ground that the information does not, after any
amendment which the court is willing and has power to make,
state any offence which the court has power to try.
o The court may, in its discretion, either hear and determine the
matter during the same sitting or adjourn the hearing thereof to
a future time to be fixed for that purpose.
 The application can be made at any time before the passing of the
sentence but after judgment;
120
o In cases where the accused has pleaded not guilty or
o Where accused has pleaded guilty
 The grounds on which the application can be made are that
o Lack of certainty in the information or does not disclose an

offence. There is a defect in the information which defect is not
formal and the court has not amended it either at case to
answer or in the judgment
o Aggravated robbery not disclosing that one was armed and
working with another.
o The charge is founded on an act that was repealed before the
plea
 Judgment cannot be arrested on the ground that:
o The evidence does not support the charge
o There was a procedural irregularity during the trial
 If the court decides in favour of the accused, he shall be discharged

from that information.
THE TRIAL IN DETAIL
MENTAL DISABILITY
 accused person must plead when charge is read
 where unable to respond must find out why
121
 section 160 CPC court must inquire into where issue of failure to
plead by reason of unsoundness of mind or disability arises
o THE PEOPLE v MUSITINI 1975 ZR 53 the court should
immediately enquire when the issue of whether accused is
capable of making a defence
 section 161 CPC

o this may include medical examination
o enters plea of not guilty where finds that not able to make
defence
o THE PEOPLE v MWABA 1973 ZR 271 whether a person
can make a defence should be dealt with as soon as it arises
from any person including a medical expert
o THE PEOPLE v BANDA 1972 ZR 307 in the inquiry the
court needs to find out whether is capable of making a
defence or whether he was insane at the commission of the
crime
 trial proceeds
 at end of trial
o acquits if no evidence-161(2)(a) CPC
o called upon to give defence MWABA CASE
 if sufficient evidence to justify conviction
o order detention during the president’s pleasure-section
161(2)(b) CPC
o THE PEOPLE v MWEWA 1971 ZR 171 procedure under
section 163(1) (was 154(1)) is only applicable to a person
who suffers from mental illness. Mute person for the
purposes of sentencing treated like a normal person.
o special finding (defence of insanity-section 167)
122
 even where acquitted can order detention-section 161(3)
o Mental Disorders Act Cap 305
 section 165 CPC- one detained because cannot make a defence

must be brought back when ok
o MBAYE v THE PEOPLE 1975 ZR 74 where a person is

taken for medical examination even if they have been found
not to be able to make a defence they must be tried. They
cannot wait until treated.
A court cannot make a special finding if it finds one innocent
by reason of insanity
o CHABALA v THE PEOPLE 1975 ZR 128 the difference

between mental capacity at the time of a trial (fairness of the
trial) and at the time of the commission of the offence
(criminal responsibility)
 no appeal against special finding

o MALITA BANDA V THE PEOPLE 1978 ZR 223 no appeal
lies to an order under 161(2)(b) on its merit but where made
without jurisdiction.
 Onus of establishing unsoundness of mind rests on accused
person
o KHUPE KAFUNDA V THE PEOPLE 2005 ZR 31
TRIAL WITHIN A TRIAL

 in the course of investigation, the accused may give incriminating
evidence
 verbal or written
 the written one is usually called a warn and caution statement
123
 admissibility of a confession is being voluntary and not
truthfulness
 where it is contested that statement was not free and fair
o KASUBA V THE PEOPLE 1975 ZR 41when a witness is
about to be referred to the incriminating evidence the
accused should be asked if they object
o HAMFUTI v THE PEOPLE (1972) ZR 420 whether or not
the accused is represented he must be asked whether he
objects to the contents of a statement
 A trial within a trial Will not be held because accused did not
understand the language or was scared
o VILONGO v THE PEOPLE 1977 ZR 423 not sufficient that
was scared but that fear was put into a person to induce the
confession
 an allegation that no statement was made despite beatings does
not raise the issue of voluntariness but raises a question of
credibility as one of the general issues-but being forced to sign
does
o MATE, MBUMWAE AND MWALA 1995-1997 ZR 135
 Prosecution will call police officers and/or persons who were
present during recording of statement
o Witnesses cross examined and re examined
 At close of prosecution case accused person gives testimony and
calls witnesses
o Cross examination limited to admissibility of statement
during trial within a trial-
o TAPISHA v THE PEOPLE ZR 1973 222 –has argument why
 held even where subsequently
o LUMANGWE WAKILABA v THE PEOPLE 1979 ZR 74 can
be held where accused suggests that was induced even after
the prosecution has closed its case
VOIRE DIRE
124
 At common law a person incapable of understanding an oath by
reason of infancy was incompetent to testify
 Section 122 (1) of The Juveniles Act provides for admission of
child’s evidence
 122. (1) Where, in any proceedings against any person for any
offence or in any civil proceedings, any child of tender years
called as a witness does not, in the opinion of the court,
understand the nature of an oath, his evidence may be received
though not on oath, if, in the opinion of the court, he is
possessed of sufficient intelligence to justify the reception of his
evidence and understands the duty of speaking the truth; and
his evidence though not given on oath but otherwise taken and
reduced into writing so as to comply with the requirements of
any law in force for the time being, shall be deemed to be a
deposition within the meaning of any law so in force:
 Provided that where evidence admitted by virtue of this section

is given on behalf of the prosecution, the accused shall not be
liable to be convicted of the offence unless that evidence is
corroborated by some other material evidence in support thereof
implicating him.
ZULU v THE PEOPLE 1973 ZR 326 sets out procedure under section
122
o The court must first decide that the proposing witness is a child
of tender years; if he is not, the section does not apply and
the only manner in which the witness's evidence can be
received is on oath.
o If the court decides that the witness is a child of tender years,
it must then inquire whether the child understands the nature
of an oath; if he does, he is sworn in the ordinary way and his
125
evidence is received on the same basis as that of an adult
witness.
o If, having decided that the proposing witness is a child of tender
years, the court is not satisfied that the child understands
the nature of an oath, it must then satisfy itself that he is
possessed of sufficient intelligence to justify the reception
of his evidence and that he understands the duty of
speaking the truth; if the court is satisfied on both these
matters then the child's evidence may be received although not
on oath, and in that event, in addition to any other cautionary
rules relating to corroboration (for instance because the offence
charged is a sexual one) there arises the statutory requirement
of corroboration contained in the proviso to section 122 (1).
o But if the court is not satisfied on either of the foregoing
(sufficient intelligence and duty to speak the truth) matters the
child's evidence may not be received at all.
 CHIBWE V THE PEOPLE 1972 ZR 239 the court must record actual
questions and answers on which the conclusion has been reached.
 No fixed age below which child is incompetent to give evidence on oath
or unsworn evidence
 Where a voire dire has been inadequate the fault lies with the court;
there is no question of the prosecution being given the opportunity to
look for further evidence to strengthen its case.
o SEMANI V THE PEOPLE 1973 ZR 203-ordering a retrial is in the
discretion of the court.
TYPES OF PUNISHMENT
Provided for under Chapter 6 of the penal code. A court may impose the
following forms of punishment:
(a) death;
(b) imprisonment or an order for community service;
(d) fine;
126
(e) forfeiture;
(f) payment of compensation;
(g) corporal punishment;
(h) deportation;
(i) any other punishment provided by this Code or by any other law.
Death Penalty Section 25 PC

(a) By hanging, by the neck until dead.
(b) A death sentence shall not be imposed on a person who
committed the offence under the age of 18. He will instead be
detained at the president’s pleasure. A pregnant woman cannot
be sentenced to death. She will instead be sentenced to life
imprisonment.
Imprisonment – Section 26
(a) A judge has discretion to order imprisonment with or without
hard labour, unless hard labour is prescribed by law.
(b) A person liable to imprisonment for life or any other period may
be sentenced for any shorter term.
(c) A sentence can be backdated to when the accused was remanded.
The judge has to say “ ...with effect from...” –Section 37
(d) A fine can be imposed instead of or in addition to imprisonment.
(e) A sentence can be concurrent or consecutive. The guiding
principle is that “where the facts of the case disclose a series of
offences forming a course of conduct, the proper procedure is for
the sentence imposed to run concurrently.” Muke v The People
(1983) ZR 94
(f) Where an accused has committed many offences, the court
should assess the proper sentence which is appropriate for the
whole course of conduct “ Isaac Simutowe & Others Vs The
people (2004) ZR 91
127
(g) For offences to be considered as one course of conduct, they must
all be committed within a short period of time. Chomba v the
people (1975) ZR 245. Appellant had been found guilty of 5
counts of burglary and theft- all committed within 12 days. The
trial court ordered that these should run consecutively. On
appeal, the supreme court held that the sentences should run
concurrently. The court made this statement” this was a series of
offences committed over a short period and should have been
treated as one course of conduct for the purses of sentence”.
(h) In the case of the People v Soko 2011, the court stretched the
principle of proximity to include similarity in the offences
committed. Although the offences were spaced, (by one year in
some counts), the conduct of the appellant revealed a fraudulent
disposition of mind that led to the commission of a series of
offences involving either the sale or renting out of a house to a
different people over a period of one year”. The court allowed the
appeal on the ground that it fell within the principles laid down in
the above cases and so the magistrate was wrong to order the
sentence to run consecutively. The appellate court made the
order to run concurrently.
(b) suspended sentences are commonly imposed in order to alleviate
the strain on overcrowded prisons or to first time offenders who
have committed minor crimes. A suspended imprisonment is
served outside jail - does not take effect until the happening of
some event. Usually, a sentence is suspended on condition that
the offence is not repeated during suspension of sentence
(operation period). For example, an individual may be sentenced
to a six-month jail term, wholly suspended for six months. If they
commit any other offence during that year, the original jail term
is immediately applied in addition to any other sentence.
128
FIFTH SCHEDULE
OFFENCES FOR WHICH COURTS MAY NOT SUSPEND SENTENCE
Any offence punishable by death.

Any offence against section 226 of the Penal Code.
Arson.
Robbery.
Any offence in respect of which any written law imposes a
minimum punishment.
Any conspiracy, incitement or attempt to commit any of the
above-mentioned offences.
The period for which the sentence is suspended cannot exceed the
term of the original sentence
Sentencing
The fundamental purpose of sentencing is to contribute to respect for the
law and the maintenance of a just, peaceful and safe society by imposing
just sanctions that have one or more of the following objectives, namely to:
(a) denounce unlawful conduct; (criticise)
(b) deter the offender and other persons from committing offences;
(deterrence)
(c) separate offenders from society, where necessary; (for the protection
of the society, oftentimes).
(d) assist in rehabilitating or reforming offenders;
(e) provide reparations (compensation) and or retribution (revenge) for
harm done to victims or to the community; and
(f) promote a sense of responsibility in offenders, and acknowledgment
of the harm done to victims and to the community.
Principles of Sentencing
129
(a) A sentence must be proportionate to the gravity of the offence and
the degree of responsibility of the offender.
(b) a sentence should be increased or reduced to account for any
relevant aggravating or mitigating circumstances relating to the
offence or the offender. This is why it is important that previous
convictions, if any, are read out.
(c) a sentence should be similar to sentences imposed on similar
offenders for similar offences committed in similar circumstances;
(that is why case law is crucial)
(d) where consecutive sentences are imposed, the combined sentence
should not be unduly long or harsh;
(e) The maximum penalty should be reserved for worst case scenarios;
and
(f) an offender should not be deprived of liberty, if less restrictive
sanctions may be appropriate in the circumstances. E.g. if the
prescribed penalty is a term of imprisonment or a fine, the court
should rather go for the fine. In Musonda v The People (1976) ZR
263, the Supreme Court held that where there is an option of a fine
or imprisonment, a first offender should be sentenced to pay a fine
with imprisonment only in default unless there are aggravating
circumstances.
Mitigating Factors
There is no exhaustive list, but from case law, these are some of the things
the court takes into account when passing sentence.
(a) Youth and age
(b) Antecedents of accused e.g. previous conviction
(c) Extent of corporation in the investigation
(d) Mental state – including a degree of diminished responsibility
(e) Lack of premeditation - lack of long premeditation may help reduce
sentence. Spur of the moment kind of thing, or heat of passion.
130
(f) Character - good character; standing in community and having
reputation for kindness and being an exemplary family man; .
(g) Remorse - lack of remorse is an aggravating feature.
(h) Capacity for reform and continuing dangerousness
(i) Due to youth or commitment to undergo rehab for drug or alcohol
addition.
(j) Delay up until time of sentence
(k) How long the accused has been in custody.
(l) Guilty plea
Community service – Section 26A

Where an offender has been sentenced to community service, the
offender shall perform community work for the period specified in the
order for community service shall be performed in an area where the
offender resides.
Fines Section 28
(a) Where fine is not specified, the amount of fine imposed is
unlimited, but may not be excessive.
(b) The court may order that in default of paying the fine, a term of
imprisonment shall be served, (the conversion table is provided
for in this section) e.g. failure to pay a fine exceeding 1500
penalty units will attract a term of 6 months imprisonment.
Court may order a warrant for the levy of the amount on the
convict’s movable or immovable property.
Forfeiture Section 29
Compensation –Section 30
Deportation Section 34, 35
131
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Lecture Notes:

CIVIL AND CRIMINAL PROCEDURE

THE ZAMBIAN JUDICATURE AND JURISDICTION

The learned authors of ‘Words and Phrases Legally Defined’ Volume 3,

In Zambia National Holdings Limited and United National Independence

‘…….The term ‘jurisdiction’ should first be understood. In one sense, it

Article 120 of the Constitution of Zambia (Amendment) Act 2015 provides

ESTABLISHMENT AND HIERARCHY OF SUBORDINATE COURTS

Section 4 of the Subordinate Courts Act stipulates that the jurisdiction of

(a) Chief Resident Magistrate – K 100, 000;

In matters concerning recovery of land, the revised thresholds are as

Further, Subordinate Courts lack jurisdiction over the following matters: -

(a) An application for habeas corpus;

(b) Matters relating to validity of a will;

(c) Matters relating to a person’s legitimacy;

(d) Matters relating to entitlement to right, duty or office; and

(e) Dissolution of a marriage.

IN THE HIGH COURT FOR ZAMBIA 2015/HP1/XXX

BEN MUTALE Defendant

Similarly, Subordinate Court documents, will be headed as follows: -

INSTITUTING CIVIL PROCEEDINGS

(a) Cause of Action: the plaintiff should establish the wrong

A party wrongly joined to the action may take out a mis-joinder

When obtaining instructions find out from the client in what

John Tembo (suing as a trustee for XYZ Union) Plaintiff

A Sole Proprietor/Firm (Business Name)

A Minor - can only sue through an adult person (mother, father,

“A Court can order joinder if it appears to the Court or judge

In Abel Mulenga and Others v Chikumbi (2006) ZR 33, it was

(c) Forum: As earlier observed, proceedings should be instituted in

(d) Mode of Instituting Proceedings: Proceedings should be

In the Chikuta case, the appellant sought a declaration that he

(ii) Where any matter is brought to the high court by means of

In Amber Louise Guest, Milan Trbonic v Beatrice Mulako

The said amendment to the English Law (Extent of Application) Act

Section 8 previously read: -

Section 10 of the High Court was equally amended by Act No. 16 of

Section 10 hitherto provided as follows: -

However, the position has since reverted the pre-2002 amendments,

Further, in Ludwig Sondashi v Godfrey Miyanda (1995-1997) ZR

‘Article 118(2)(e) is not intended to do away with existing

More recently, however, in Road Transport and Safety Agency v

In apparent reference to the New Plast Industries Case (but wrongly

A Writ of Summons could be said to be the default or primary mode

(a) Originating Summons – applies to matters which under any

IN THE HIGH COURT FOR ZAMBIA 2010/HP/1216

CHRISTOPHER SINGONGO PLAINTIFF

MBUNJI MUBYANA 2ND DEFENDANT

ORIGINATING SUMMONS PURSUANT TO ORDER VI RULE 2 HIGH

(a) Interpretation of the Companies Act No. 10 of 2017.

(b) Determination as to whether section 5 of the Companies Act provides

(d) Costs of and incidental to this application.

Dated the ……………… day of ………………………………,……. 2019

To: The Defendant and Its Advocates

IN THE HIGH COURT FOR ZAMBIA 2010/HP/1216

CHRISTOPHER SINGONGO PLAINTIFF

MBUNJI MUBYANA 2ND DEFENDANT

ORIGINATING SUMMONS PURSUANT TO ORDER VI RULE 2 HIGH

LET THE Defendant within …… days cause appearance to be entered to this