ZAMBIAN OPEN UNIVERSITY

SCHOOL OF LAW
NAME: LUKUNDO SINKALA
COMPUTER NUMBER: 22111363
PROGRAMME: BACHELLOR OF LAW
ACADEMIC YEAR: 2024 FIRST SEMESTER
YEAR OF STUDY: 3rd YEAR
COURSE TITLE: CIVIL PROCEDURE
COURSE CODE: LL351
ASSIGNMENT NUMBER: ONE
ASSIGNMENT DUE DATE: 08TH MARCH, 2024.
Civil procedure is a branch of law that deals with the processes and procedures on how cases
ought to be commenced and concluded in the various courts we have and the rules and
documents that need to be submitted in order for the courts to give time to the case for the
proceedings to start. It is therefore imperative to ensure that all rules of commencement are
adhered to in order to avoid the case being thrown out of court due to the use of the wrong
documents and procedure to begin the trial.

In Zambia we have a number of courts established to carry out and attend to matters withing
there jurisdictions, at no given point will a court hear matters or cases in which it has no
jurisdiction in. This is done in order to create order and hierarchy in the judicial which will
help ease the burden which can be carried by a court by ensuring that it only hears cases it is
sanctioned to hear. With this in mind it is important to note that this helps in attending to
different cases at any particular time because a court has particular cases it needs to attend to.

Below I discuss various ways in which a proceeding can be commenced in the carious courts
according to the laid down rules and procedures established by the law.

The subordinate court’s establishment are provided for by the Zambian constitution1 and the
subordinate court act Cap 28 of the laws of Zambia. The subordinate courts are found in each
district of every province of Zambia all powers and procedure of the mentioned court are
derived from the subordinate court act dealing with civil jurisdiction with jurisdiction; the
criminal procedure code, chapter 88 and the penal code, chapter 87 of the laws of Zambia.

The subordinate court has three classifications and these are;

i. Subordinate court of the first class: which is presided over by the chief magistrate,
principle resident margistrtae, resident magistrate and nagistrate class 1.
ii. Subordinate court of the second class: presided over by a class 2 magistrate
iii. Subordinate of the third class: presided over by a III class magistrate

These court have jurisdiction to hear and exercise civil and criminal jurisdiction within their
allotted districts for instance, cases arising from contracts, rental recovery children’s custody
and money lending applications. and have jurisdiction to hear appeals from the local courts
from their locality.

1
Constitution of Zambia as amended by Act No 2 of 2016
In this court a civil proceeding is commenced by way of writ of summons accompanied by a
statement of claim, originating summons, originating notice of motion or petition. It is
important to note that cases in this court are commenced differently depending on the matter
that the case has to deal with and the clerks at the courts are able to advise on what form has
to be used when filing for a case proceeding.

Writ of Summons: Is a formal prescribed document by which an action is commenced in the

court. This is a document that informs the defendant that the plaintiff has started a civil
proceeding against them in the courts of law and the defendant is required to enter an
appearance in an event he or she wishes to dispute or counter the claim by the plaintiff
brought against him/her in the court of law. on the other hand a statement of claim is a
document used as a precise document to claim and state the relief sought by the requirement.
Order 7 Rule one of the high court 2sets a mandatory requirement for the plaintiff suing by an
advocate to endorse on the writ;

a) Physical, postal and electronic address of the plaintiff

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

Writ of summons must be served within the specified time limits failure to which it shall not
be considered.

The lands tribunal was established under the lands act, 1995. The main jurisdiction of the
lands tribunal is to hear and determine disputes relating to land. In this tribunal, for a civil
proceeding to commence in order for time to be given by the tribunal to hear and settle a
dispute one has to file and originating summon as a way of commencement. These
regulations provide for procedures of lodging an appeal to and proceedings before the lands
tribunal constituted under the lands act and certain powers of the tribunal. An appeal to the
tribunal against any directive or decision may be instituted by sending to the secretariat. The
tribunal settles disputes and arguments ranging from disputes regarding the value of land and
buildings, about their occupation, use and development.

2
Order 7 Rule 1 of the High court Rules
Article 133 of the Zambian constitution3 provides for the establishment and empowers the
high court to adjudicate in matters of law. Section 10 of the High Court Act provides that the
jurisdiction vested in the High Court as regards practice and procedure, shall be exercised in
the manner provided by the High Court Act. It is imperative to note that the high as per the
power vested in it can exercise original jurisdiction, apeallate jurisdiction, supervisory
jurisdiction etc

The High Court has a number of divisions these being;

i. Commercial division
ii. Principle division
iii. Children’s court
iv. Family court
v. Industrial relations court

We shall only focus on the commercial, principal, family and industrial divisions of the
high court.

Commercial Division: This division of the high court was established according to article
13(2) of the Zambian constitution as amended by Act No.2 of 2016. The main reason
behind its establishment was to resolve cases or issues arising from commerce, trade,
industry and any transaction of a business nature. The processes and procedures of this
division are provided for in the High court Act CAP27 of the laws of Zambia. This court
is deemed to be a fast track court for cases to do with trade and the rules are very
stringent in order to ensure that cases a disposed off quickly.

Order 6 Rule 1 of the High court Rules (“HCR”) provides that every action in the High court
shall be commenced by writ of summons endorsed and accompanied by a statement of claim.
This is more like a general rule, Order 6 rule (2) of the High court rules provides that “Any
matter which under any written Law or these rules may be disposed of in chambers shall be
commenced by an Originating Summons. Depending on the case at hand the means of
commencement are provided for in the high court Act.

Family Division:

The family division of the High court is a division that deals with family related issues,
inheritance, divorce or sharing of assets when the divorce has been finalised in the court of
3
Ibid
law and any other case that has got to do with family. When it comes to divorce issues
sections 8 and 9 of the matrimonial causes act provides for both men and women to file for
divorce in the courts of law.

The process first starts with a petition. A petition is an application to the court asking the
court to end or dissolve the marriage. The person filing the petition is called a petitioner and
the person receiving the petition is called the respondent. When petitioning the court for
divorce, the petitioner need to ensure that the grounds for petitioning the court to end the
marriage are valid and concrete.

The grounds that the court will consider on which the marriage can be dissolved is whether if
the marriage has broken down irretrievably, if the spouse was caught in adultery, if the
couple has lived apart for two years or if they have lived apart for five years or if either
spouse deserted the other person to go and live with another man or woman. These are the
grounds that the court will consider to dissolve the marriage after the petition has been filed.

After a petition has been filed by the petitioner, the court will then notify the respondent of
the petition and the need for the respondent to respond within 14 days from the time the
petition was filed, After that is done a conditional order will be issued by the court to both
parties notifying them that there is no barrier to their divorce.

Industrial relations Division: The industrial relations division of the high court has both
original and exclusive jurisdiction in all industrial relations matters like;

i. Inquiring into and making decisions in collective disputes

ii. Interpreting terms of collective agreements and recognition agreements
iii. Adjudicating upon matters affecting the collective rights and privileges of
employees, and employers

Mainly this division of the high court deals with relations between an employee and the
employer and endeavours to settle disputes arising from this relationship to ensure that the
rights and privileges of both the employee and employer are well respected by the parties
involved. It consists of the chairman, deputy chairman and not more than 10members. It is
important to note that in as much as the industrial relations court is a division of the of the
high court the practice and procedure in the IRC is still governed by the Industrial Relations
Court Rules under Cap 2694 and is still required under Section 85(5) of the Industrial &
Labour Relations Act Cap 269 not to be bound by the Rules of evidence and that the main
object of the Court is to do substantial justice between the parties before it.

Commencement of actions in that Court is still governed by Rule 4 of the Rules by filing a
complaint (as the case may be) followed by an Answer. The complaint consists of the details
of the right or privilege that the complainant alleges to have been breached and what remedy
is sought for.

The Court of Appeal is the second largest court in Zambia. Article 131 of the constitution
(amended) Act, 2016 provides for the establishment of the court of appeal. The court of
appeal hears appeals from the high court and quasi-judicial bodies. For an action to
commence in the court of appeal, the appellant must file for and appeal. An appeal is a
request made to the court of appeal or higher court to review a matter in which the appellant
feels like the judge in the lower court errored in his judgement. Before an appeal can be
allowed to proceed to a higher court, the appellant must apply to the High court to be given
authorisation to proceed and appeal the judgement through a process called leave. It is at this
stage that all applications have merit or if they are just frivolous cases or claims. Once the
application is authorised then an appeal can be heard and considered in the courts of law. in
the case of Peter chinyama and Legina Hamukwele

The High Court Judge duly considered the appeal. It was his opinion that Peter Chinyama
occupied farm 31 on the authority of Davison Chipuba Chiinda the deceased. Chiinda was in
constructive possession of the farm, while Chinyama was cognizant of the fact that he was a
caretaker. The farm did not belong to him on account of his lengthy residence there. He had
even acknowledged the fact that he could leave the farm if required to do so, during trial. In
the learned judge's view, Legina's claim was enough for Chinyama to relinquish the farm
to the beneficiaries of the estate of Davison Chipuba Chiinda. Thus, the farm and the goods,
being the property of the late Davison Chipuba Chiinda, belonged to Chiinda's children and
his estate, and not to the defendants as claimed. The learned Judge upheld the decision of the
trial Magistrate, and dismissed the appeal with costs.
An appeal against the decision of the High Court was made to
this Court, on the following grounds;
The Trial Magistrate erred in law and in fact when he held that the action was within time
4
Industrial Relations Court Rules
limit when it was commenced 13 years one month and one week after the death of the
deceased.
The Trial Magistrate erred in law and in fact when he held that the property be returned to the
rightful administrator without stating who of the four defendants was in charge of the
distribution of the estate.
The Trial Magistrate erred in law and in fact when he ordered that the 1st defendant be
evicted from Farm No. 31 Musuma Settlement without considering how and when he came
on to the said Farm.
The Trial Magistrate erred when applying the rules of equity to order the eviction of the 1st
defendant from Farm No. 31 Musuma Settlement without stating which principle of equity he
was relying on.
The Appellate High Court erred in fact and law when it upheld the lower Court's judgment.
The Appellate High Court erred in law and in facts in failing to rule and decide on other
grounds of Appeal before it without advancing any reason for the said default.

The constitutional is the highest court of record in Zambia. It has original and final
jurisdiction except for cases that have to deal with the enforcement of the bill of rights
found in part III of the constitution, the high court has the original jurisdiction and
appeals are directed to the supreme court. The con court hears matters relating to the
interpretation of the constitution, matters relating to the violation of the constitution,
nomination of presidential candidates etc for instance in EREMIAH MULINGANIZA

AND JONES KATIYO and ELECTORAL COMMISSION OF ZAMBIA5

In arguing this application counsel for the Respondent Mr. Khoza has stated that the
petition in its form and content offends the mandatory provisions of sections 100 of the
Electoral Process Act aforesaid. He has stated that the petition before us has no relief in it.
Counsel has argued that rule 9 of the Local Government Election Tribunal Rules under
Statutory Instrument No. 60 of 2016 makes it mandatory for a petition to have a prayer as a
relief. But the petition before us, he argued, has no such prayer thereby offending the said

rule. Mr. Khosa has also argued in the second limb of his argument that theaffidavit verifying
the said petition also offends Order 5 of the High Court Rules, in particular rules 16,17,18
and 20 of the said Order 56. He argued that the affidavit in question contains extraneous
5
Jeremiah Mulinganiza and Jones Katiyo and Electoral Commission of Zambia
6
ibid
matters that are not supposed to be contained in an affidavit. In response, the Petitioner does
not dispute the fact that the petition an affidavit are defective but merely argues that such
defects are curable. In support of such an argument the Petitioner has cited Article 118 (2) (e)
of the Republican Constitution as amended by Act No. 2 of 2016. He has also cited the case
of Leopard Waifold Limited vs. Unifreight SCZ Judgment No. 23 of 19857 in support of his
argument. We have considered the documents filed into this Tribunal and indeed the
submission by counsel and the Petitioner.We are quick to state that Rule 21 of the Local
Government Elections Tribunal Rules Statutory Instrument No. 60 of 2016 provides for
power of this Tribunal to entertain and determine any preliminary issue that may be raised by
a party. The preliminary issue has been raised on a point of law. It is a common and trite
principle of law that a preliminary issue such as this one before us now can be raised at any
point during trial of a matter. In the case of City Express Service Limited vs. Southern Cross
Motors Limited (2007) ZR 263 it was held that a preliminary issue touching on the question
of limitation period is a point of law which can be raised and considered at any stage of the
proceedings. Order 18.r.ll of the RSC 1999 Ed. States that a defendant may at trial raise a
point of law open to him even though not pleaded.

A matter may be commenced in the Constitutional Court by any of the following ways:
a) Petition (accompanied by an affidavit verifying facts)For Presidential Election Petition and
all matters relating to alleged breach or contravention of the Constitution.
b) Originating Notice of Motion (accompanied by an affidavit in support) For matters relating
to the Republican President or Republican Vice President other than the nomination or the
election of the Republican President or Republican Vice President; or For an application to
review a decision of the Electoral Commission of Zambia in the delimitation of
Constituencies and Wards.
c) Originating Summons (accompanied by affidavit in support) For matters relating to the
interpretation of the Constitution.
d) Summons (accompanied by affidavit in support) For referrals by any other Court in
Zambia in any proceedings where a constitutional question arises. For interlocutory
applications. A party (Petitioner or Applicant) commencing an action before the Court will be
required to file the appropriate court process at the Court’s Registry and serve a copy on the
Respondent (the person or party sued).After service the party must file at the Court Registry
an affidavit of service as proof of service on the Respondent(s). The Respondent after being

7
Waifold Limited vs. Unifreight SCZ judgement No 23 of 1985
served with a petition will respond by filing a response in the form of an answer and an
affidavit in opposition within fourteen (14) days. Where the Respondent is served with an
Originating Summons or Originating Notice of Motion, the Respondent must file an affidavit
in opposition within fourteen (14) days of service of court process. The Petitioner/Applicant
may reply to the answer and/or affidavit in opposition within seven (7) days of being served
with the answer and/or affidavit in opposition. Where the case is commenced by way of
Petition, the Respondent may, within fourteen (14) days after being served with a petition,
file a cross petition which shall disclose the matters in dispute.

The Supreme court is the highest court in the country. Its establishment is provided for by
Article 127 of the Zambian constitution. An appeal from the Court of appeal to be made to
the supreme court with leave of the court of appeal. Meaning before appealing to the supreme
court one must apply for permission from the court of appeal. In simpler terms no one can
appeal to the supreme court as a matter of right. The court of appeal will grant permission to
appeal where it considers that;
i. The appeal raises a point of law of public importance
ii. It is desirable and in the public interest that an appeal by the convicted person
should be determined by the supreme court
iii. The appeal would have reasonable prospects of success or
iv. There is another compelling reason why the appeal should be heard.
You don’t appeal to the supreme court by right but rather by permission from the court of
appeal when they have a reason to believe that there is a chance for the case to be decided by
the supreme court.

The trial and the determination of this Consolidated Presidential Election Petition of 2002
has seemingly taken a long period to complete and justifiably so, the delay caused a lot of
anxiety in the nation and others. Yet, the number of the actual days, when the court sat
and heard witnesses, arguments and submissions in support of various interlocutory
applications, does not reflect the long duration the Petition has taken. The Court sat for 89
days in all to hear evidence, arguments and submissions. But in terms of duration, the
Petition commenced in January 2002 and judgment is being delivered today, a period of
three years and one month from the dates the separate Petitions were filed. The
circumstances, some of which were procedural, leading to the protracted trial, were, in
most instances, unavoidable and beyond the control of the court. In fact, the court was all
along desirous to complete the matter as quickly as possible. To put the record straight, it
is necessary to allude to some of the circumstances leading to this protracted trial. There
are three Petitioners and three Respondents in this Petition. While the 3rd Petitioner
appeared in person, the other two Petitioners were represented. On the part of the 1st and
the 2nd Petitioners, there were initially seven Counsel of record, while there were also
seven Counsels on the part of the Respondents. During the examination of witnesses,
each of the Counsel had, at times, to put questions to the witnesses. The three Petitioners
originally filed separate Petitions. The 1st Petitioner filed his original Petition on 15th
January 2002, while the 2nd Petitioner filed his original Petition on 16th January 2002.
The 3rd Petitioner, who represented himself, filed his original Petition on 17th January
2002 and subsequently; he filed an Amended Petition on 17th March 2002.

The filing of these Petitions was followed by various interlocutory applications and
rulings before single Judges of this court. These are on record. The Respondents, too,
initially filed separate Answers to each of the separate Petitions. The 1st Respondent filed
his Answer to the 1st and the 2nd Petitioners’ Petitions on 14th May 2002, while the 1st
Respondent’s Answer to the 3rd Petitioners’ Petition was filed on 18th July 2002. The
2nd and the 3rd Respondents filed a joint Answer to the 1st and the 2nd Petitioners’
Petitions on 4th June 2002. After close of pleadings, the matter was set down for hearing
for 22nd July 2002. On that day, interlocutory matters, which are also on record, were
raised. The hearing of witnesses could not start on that day. The matter was adjourned to
23rd July 2002. After, again, disposing of some interlocutory matters on that day, the
hearing of evidence could not proceed. The matter was adjourned to 16th September
2002. On the same 23rd July, it transpired that the earlier Order for Directions issued by
the court, in relation to pleadings, had not been fully complied with. Consequently, a
fresh Order for Directions had to be issued.
 BIBLIOGRAPHIES

Statutes

Lands Tribunal Act No. 39 0f 2010

High Court Rules

Matrimonial Causes Act

Zambian Constitution as amended by Act No. 2 of 2016

Industrial Relations Court Rules

Cases

Peter Chinyama and Legina Hamukwela

Waifold Limited vs. Unifreight

Jeremiah Mulinganiza and Jones Katiyo and Electoral Commission of Zambia