Civil and Criminal Procedure
Civil and Criminal Procedure
Civil and Criminal Procedure
MODULE FOR:
MAPANI CHRISTOPHER
(LLM, MBA, MIP, LLB, Bsc. ProdMgt, AHCZ)
1
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
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 especially 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
(viii) Order
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PART I: CIVIL PROCEDURE
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.
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Article 120 of the Constitution of Zambia (Amendment) Act no. 2 of 2016
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. It hears appeals from the Court of Appeal upon leave
to appeal (Article 131(2) while the Constitutional Court has original and final
jurisdiction in constitutional and election matters.
The Court of Appeal hears appeals from the high court with the exception of
constitutional matters. The industrial relations court is 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
amended constitution.
Regarding the high court’s ‘original and unlimited jurisdiction’, the Supreme
Court further 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 or 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
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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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(a) A PRM can hear civil cases with claims up to a value of K 30m.
(b) A SRM can hear civil cases with claims up to a value of K 25m.
(d) A Magistrate Class I can hear civil cases with claims up to a value of
K 10m.
(e) Magistrates Class II and III can hear civil cases with claims up to
K5m
Actions in the civil cases below must be started in the High Court as:
No magistrate has jurisdiction to hear cases where the entitlement to a public
office is in question (e.g. MP petition).
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Apart from liquidated claims, magistrates can deal with land issues where the
land, or the annual rent arising there from, does not exceed a certain value.
Thus:
(a) A PRM can hear land title cases where the land does not exceed a
value of K 30m or the annual rent K6m.
(b) An SRM can hear land title cases where the land does not exceed a
value of K 25m or the annual rent K5m.
(c) An RM can hear land title cases where the land does not exceed a
value of K 20m or the annual rent K4m.
(d) A Magistrate Class I can hear land title cases where the land does
not exceed a value of K5m or the annual rent K1.2m.
When you have been engaged as counsel and have received instructions, the
type of writ you prepare will depend on the claim. If the action is for liquidated
damages, then use a default writ of summons (has sections for defendant to
admit, make a counterclaim, defend etc.). Precedent is appended to the
Subordinate court Act in the Subordinate Court Rules (page 103). A default
writ of summons must be filed with an affidavit1 in support of the writ
verifying the debt, which must set out the nature of the claim. Any other claim
apart from a claim for liquidated damages (e.g. a claim for defamation of
character) must use a writ of summons – which is a general writ. [Notice of
intention to defend].
Subordinate Court Act (Cap 27) is not exhaustive in that it does not include
everything you need to know e.g. how to undertake interlocutory applications.
These are in the Subordinate Court Rules – appended to the Act and known
as “orders” (45 in total). S 23 - a defendant has the right to object to the
1
An affidavit is written and sworn by a “deponent”.
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jurisdiction of the court and if so, the magistrate can transfer it to the High
Court.
If you find a vacuum in the Act and/or rules/orders (as they don’t cover
everything), then you are to follow the practice and procedure used in
substantial conformity with the law and practice for the time being observed
in England in the County Courts and Courts of summary jurisdiction - see s.
12 of Cap. 28. [Note: the Act and the rules do not refer to the white book, i.e.
the rules of the Supreme Court in England. “Green book” is the magistrates
book in England]. Note also that a subordinate court has no jurisdiction to
act in relation to a statute if that statute does not say so.
A subordinate court may “in its own motion” correct an anomaly (error) e.g.
in a judgment.
Judgment Act Cap. 18 - Almost mandatory to award interest but the rate must
not be more than the BOZ rate. Note: jurisdiction in relation to liquidated
claims is related to the principle amount claimed without adding interest and
costs.
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INSTITUTING CIVIL PROCEEDINGS
Before instituting proceedings, it is advisable to first attempt an out of court
settlement. Where this fails, the following should be considered: -
(i) 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.
When obtaining instructions find out from the client in what capacity
he is giving you the instructions.
Examples: -
A Personal Representative
Joke Tembo (suing or sued in his capacity as the administrator
of the estate of the late Peter Banda )
A firm
Peter Mainza (trading as Mainza and Co.) Plaintiff
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A Minor - can only sue through an adult person (mother, father,
guardian)
A Trade Union
John Tembo (suing as a trustee Plaintiff for XYZ Union) lloi9
Group Action
John Zulu and 99 other Plaintiffs
(Note: attach a separate list disclosing the names of the other 99 plaintiffs)
Joinder of Parties
After commencing an action against e.g. a Mr. A and later you
discover that Mr. B should also be a party to the proceedings, make
an inter parte application to join Mr. B to the case as defendant.
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(a) 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.
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“(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”.
“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”.
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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:”
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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 protecting for petitions are the
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. Article provides for a petition. Also read
Statutory Instrument No. 156 of 1969;
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(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.
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IN THE HIGH COURT FOR ZAMBIA 2015/HP2/XXX
AT THE PRINCIPAL3 REGISTRY
HOLDEN IN LUSAKA
(Civil Jurisdiction)4
Between
JAMES BOTA Plaintiff
And
2
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.
3
The principal registry is the one in Lusaka. Those in provincial capitals are referred to as district registries.
4
The high court has criminal, civil, divorce and constitutional jurisdiction
5
SSP is Lusaka, SQ is Choma/Mazabuka etc.
6
May be Second Class or Third Class is the claims are small.
7
May be Livingstone, Kitwe etc.
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that the action will be dismissed with costs and it must be commenced again
de novo. However, if it continues up to judgment this is OK.
(d) The hearing is in open court on affidavit evidence and the court may
call the deponent to court to be cross-examined.
(b) When applying under O.53 r.5(1) RSC 1999 for judicial review – first ex
parte for leave to apply and then after leave is granted for the review
itself.
(c) The White Book i.e. RSC 1999 O.102 gives a series of examples where
an Originating Notice of Motion should be used but also look at Cap
388 i.e. Companies Act, to see if local legislation has modified this (e.g.
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in Zambia if you want to dissolve a company you do so by Petition, but
White Book says by originating notice of motion):
(iv) If the company’s annual return is filed and you are an aggrieved
party, you can apply for the rectification of the return by
originating notice of motion.
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The Notice of Motion is filed together with an affidavit in support and the
application may be made ex parte or inter parte. The respondent may file in
an affidavit in opposition. The hearing is in open court (but the court may
order otherwise e.g. if there are no witnesses called and everything is on
affidavit evidence - and routinely these are all heard in chambers). Whenever
the evidence is by way of affidavit, the court may order the deponent to appear
to be cross examined (e.g. if there is an application from the other side to cross
examine).
Note: as per O.6 r.7 of the HCR, the motion will have the motion day inserted
by the Registrar for when the parties will be heard.
WRIT OF SUMMONS
Read on the lifespan of a writ and a concurrent writ in the high court and
subordinate court rules. Templates of the writ of summons are appended to
the 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.
Stage One: File, Uplift and serve the Writ and Statement of Claim on the
defendant.
Stage Three: The Plaintiff files a Reply (and possibly a defence to any
counterclaim).
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Stage 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.
Stage Five: Draft the request for setting down the action for trail and file with
the bundles of pleadings and documents.
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 i.e. the matters to which the
plaintiff is seeking relief and to clearly ascertain the nature of the dispute as
the defendant is entitled to know what it is that the plaintiff is alleging against
the defendant. (Refer to XVIII of the RSC 1999 and Odgers pages 139 – 182).
They include the statement of claim, the defence, and counterclaim, defence
to counterclaim and reply. There are also pleadings that can be served
subsequent to reply and defence, namely, rejoinder by defendant, sur
rejoinder by plaintiff, rebutter by defendant, and sur rebuttal 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;
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(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;
Study the high court rules on the lifespan of a Writ and a Concurrent Writ.
(a) Pleadings must be MATERIAL. Material facts are those that are
necessary in formulating a complete cause of action. Facts may be
material in so far as they demonstrate the wrong committed and the
injury suffered, thus the extent of compensation required.
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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? Pleadings are
essential as they set the boundaries for a case. In Christopher Lubasi Mudia
v Sentor Motors Limited 91982) 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’.
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
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fact and the respective reliefs arise out of the same transaction or series of
transactions. Read more on consolidation of actions in the rules.
Rationale: If tried by two different courts, there is the possibility that they will
come up with 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
counter claim 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].
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.
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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
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.
Substituted Service
If the address of the defendant is unknown you 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:
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application on the part of the plaintiff for leave to serve 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.
INTERLOCUTORY PROCEEDINGS
ORDER 8 Parties
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.
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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.
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counsel for the defendant can be heard on the application to have this action
dismissed for want of prosecution [Can add affidavit and costs].
27
TAKE NOTICE that the undersigned Advocates have been appointed to have
conduct of this action for the Plaintiff.
ZIALE Chambers
Plot 1234
Church Road
Lusaka
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Second, file a Notice of Intention to Proceed
TAKE NOTICE that 30 days hereafter the Plaintiff intends to proceed with his
action.
ZIALE Chambers
Plot 1234
Church Road
Lusaka
To: the Defendant and his advocates
Lex Chambers
Lubu Road
Lusaka
INTERIM INJUNCTIONS
Refer to Order 26 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.
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require urgent action, the application for an injunction is often accompanied
by a certificate of urgency. Students are should farmilisise with how to
draft the summons, affidavit, order and certificate of urgency.
(Civil Jurisdiction)
Between
ORDER
It will have a “Penal Notice” i.e. the defendant must be made aware of what
he may suffer if he ignores the order.
It 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.
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(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.
31
Lord Dilock put it thus 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.
32
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.”
33
Makaba Chande (2010) Z.R. 416 (7), Justice Patrick Matibini observed thus:
-
(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
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(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.
(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.
(v) The court will look at the balance of convenience between the
parties.
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(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.
Refer to the Rule and article by Dr. Patrick Matibini entitled ‘The need
for the Remedy of an Injunction in the Protection of Fundamental Rights
and Freedoms’ published in Volume 40 of the Zambia Law Journal of
2009, for further reading.
After preparing a writ/any document you must present it to the clerk of the
court in the civil registry for filing and issuance. On presenting the document,
the court officer will “seal” the document and this signifies that it has duly
been “issued” by the court.
Sealing: done by a rubber stamp and not a metal seal. [Note: rules 7 and 8
regarding affixing stamps have now been abandoned but the rules have not
been amended to reflect this.] Once the document has been issued you can
proceed to “serve” it on the other party.
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responsible for issuing all sorts of documents.
37
Order II: Computation of Time
Rule 1(b): The act or proceeding must be done or taken at latest on the last
day of the limited time.
Rule 1(c): When the limited time is less than six days, the following days shall
not be reckoned as part of the time, namely Saturdays, Sundays and any
public holiday
Rule (d): If the time expires on e.g. a Sunday, you can still file the documents
on the following Monday.
Rule 1 - a magistrate cannot generally exclude the public from a hearing but
if he decides that this is necessary he must record the reasons for holding the
hearing “in camera”. [Note: there is a difference between holding a hearing in
camera and a hearing in chambers. Chambers matters are matters where the
parties are swearing affidavits and the proceedings are by way of affidavit
evidence and there is no need for the parties to say anything - everything is
done on affidavit evidence and there is no viva voce evidence.] In civil cases it
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is very unusual to hold a trial in camera. In criminal cases it is more common
especially where juveniles are involved. [Note: in the High Court a judge may
conduct a trial in chambers and he does not need to give reasons but if a
party is aggrieved by this he can appeal to the SCZ.]
Rule 4 - Interpreters
The role of an interpreter is just to translate and explain e.g. from Nyanga into
English. The interpreter is usually a court official but you can have an
interpreter who is not e.g. if the court does not have e.g. a speaker of
Portuguese and one of the parties wants to hear the proceedings in
Portuguese. The interpreter must swear an oath.
Order V: Evidence
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Part I – Exclusion of witnesses
Rule 1 - The rationale for excluding witnesses from court by the court or on
an application by either party is that witnesses are supposed to give
independent evidence as opposed to merely repeating what previous witnesses
have testified. Unless witnesses are excluded there is the likelihood that
subsequent witnesses will repeat what they have already heard from the
witness stand. To ascertain the truth it is advisable that witnesses are
excluded from court until they are called to give evidence. Either party may
apply to exclude or court may exclude on its own motion.
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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’.
Certificate of Exhibit(s)
Certificate of Exhibits has the same heading as the affidavit and the caption
will be “Certificate of Exhibits” i.e.
BETWEEN
PETER BWALYA PLAINTIFF
AND
FRED BANDA DEFENDANT
CERTIFICATE OF EXHIBITS
These are the exhibits referred to in the affidavit of the said Peter Bwalya,
marked “PB1” to “PB6”
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Commissioner for Oaths
ABC and Associates
10th Floor, Nyumba House
Njila Avenue
LUSAKA
Advocates for the Plaintiff
I.e. 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
IN THE SUBORDINATE COURT OF THE 2008/SSP/0001
FIRST CLASS FOR THE LUSAKA DISTRICT
HOLDEN AT LUSAKA
BETWEEN
PETER BWALYA PLAINTIFF
AND
FRED BANDA DEFENDANT
42
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.
Jurat
Every affidavit ends with a jurat as shown below”
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. The following are some of the rules as
contained in the subordinate court rules: -
Rule 11 - Before an affidavit can be used in court the original must be filed
in the court registry. If there are two parties submit 3 copies - one for court
and one for each party. If there are five parties, submit 6 copies. Affidavit must
be sworn and signed (or thumb printed) by the deponent before and in the
9
SWORN and DEPONENT’S NAME in capitals and Bold.
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presence of the commissioner for oaths. The commissioner must commission
the affidavit in the deponent’s presence [see Cap. 33] It is advisable (but not
a legal duty) for the commissioner to read through the affidavit to see that it
is not defective in any way.
Rule 15 - the affidavit is not to include a prayer (i.e. what you are asking the
court to do/order for you), objection, conclusion (i.e. a suggestion that the
court decides the matter in a particular way - ousting the authority of the
court), or any legal argument.
Rule 17 - The deponent must state the grounds for any belief that he may
have. Usually the affidavit will contain only facts that the deponent actually
knows (i.e. he saw or heard or felt etc.). However, he can give hearsay evidence
in an affidavit if he gives the source of that hearsay.
Rule 18 - Must give the name of the source of information if not from the
deponent’s own knowledge. If you don’t, affidavit will not be allowed.
Rule 20
10
If the court does not use its discretion you will have to amend the affidavit under Order V, rule 14.
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(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 …..
I, Peter Bwalya, of the City and Province of Lusaka in the Republic of Zambia
do hereby make OATH11 and say as follows:
(a) The affidavit must be written in the first person i.e. “I” and in
consecutively numbered paragraphs.
(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
11
OATH in capitals. Can say AFFIRMED is deponent on religious grounds refused to swear.
45
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.
A notary public has a “seal” and the affidavit is sealed with this seal.
46
(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
47
in a position to produce the original. If not done, the court on its own motion
or the other party may remind counsel that photocopies are not admissible.
(a) If a witness is giving testimony from the witness box, the court records
the evidence. As there are no recorders in the subordinate court, the
magistrate will record the evidence.
(b) The court may direct that the witness may proceed to give evidence in
affidavit form although this is rare and only happens if e.g. a witness is
sick/indisposed as such a witness cannot be cross-examined and weight
attached to such evidence is thus lower.
(c) A court may also direct a court official to obtain a witness statement from
a witness who is not able to appear before the court because of illness
etc. The statement can be tendered in court and is recorded as evidence
of the person making it. As it is not on oath (and also as there is no cross
examination) the weight attached to it is lower than an affidavit.
Sub rule 2 - A writ is prepared by counsel acting for the plaintiff. If the plaintiff
is not represented, the clerk of the court prepares the writ. I.e. the plaintiff
can go to the court and present the facts to the clerk there.
48
When preparing a writ, you must show the residential address of the plaintiff
or its place of business if a company/firm. If the writ does not disclose the
residential or business address it is defective and the defendant can file an
application for a summons to dismiss the action because of irregularity.
However, it is a curable defect not a fatal defect. Your defence is that the defect
is curable and you can ask the court to give you leave to cure the defect.
The name(s) of the defendant must be indicated on the writ and below the
defendant’s name there is space to endorse the defendant’s residential or
business address, not just the P.O. Box No. If you don’t know these addresses
you can apply for substituted service or service by registered post.
You do not endorse the name of the magistrate on the writ. Leave it blank, as
this will be endorsed by the clerk of the court along with the date and the
time. When filing in court, the writ must be signed and stamped by the clerk
of the court to be effective.
1.
2.
3. Further or other relief - as there are no pleadings in the subordinate
court, if you discover new claims before the trial you can still pursue
then at trial under this claim.
4. Costs
Below the signature of the clerk of court indicate the court fees, messenger’s
fees and the solicitors costs. The messenger’s fees are paid to the person doing
the service. The solicitor’s costs are an estimate and may be increased or
reduced e.g. after taxation. After the “prayer” disclose the name of the law firm
and its address, then sign the writ.
49
Note: In class actions with say 100 plaintiffs, name one plaintiff to represent
the other 99 ie. James Banda and 99 Others (Plaintiffs). But you must
attach to the writ a paper listing the names of the other 99 plaintiffs - their
addresses are not required on the paper – only James Banda’s (or their
advocate’s is required for service of documents. Similarly if there are 100
defendants, pick one and attach the names of the other 99 to the writ.
Otherwise:
After signing, lodge the writ in the registry, the clerk of court will sign it in the
place provided and thereafter it can be uplifted and served on the
defendant(s).
If the defendant wants to dispute the claim, detach Form B at the bottom of
the second page of the writ (NOTICE OF INTENTION TO DEFEND), make 2 or
3 photocopies and fill it in. Then file all the copies into court before the date
written on the second page of the writ (see note 4 on the second page).. Form
B must state the grounds for disputing the claim and if space is insufficient,
50
the defendant or his advocate can use another sheet. Once Form B is filed, it
can be uplifted and the Notice of Intention to Defend can then be served on
the plaintiff or his advocate.
A Default Writ of Summons is used when the Plaintiff has a specific claim
to make e.g. for liquidated claims for damages e.g. the repayment of a loan.
The default writ can only be used for the recovery of money – note that
subordinate courts can only deal with claims up to K 30m - if higher then the
action has to go to the High Court which is more expensive. Note also that
you cannot “split” the claim to get it under the K 30m cap. The requirements
of disclosure of names and addresses of the parties for a writ apply also for a
default writ. A default writ is always accompanied by an affidavit verifying the
debt. This affidavit must disclose that the defendant has no defence to the
claim i.e.
51
Note: the affidavit MUST NOT HAVE A PRAYER. If it has, the other party can
ask, (or the court can move on its own?), to strike out the prayer and the case
will continue on the affidavit as if the offending prayer was not there.
Note: the default writ has no provision for the return day - file the writ into
court, uplift and serve on the defendant. The court will notify the hearing date.
If the debt is not disputed the plaintiff must file a summons for Judgment on
Admission I.e.
Heading
12
The “Pursuant ……” only appears on a summons not an affidavit.
52
noon, on the hearing of an application n the part of the plaintiff for
judgment in admission with costs.
The affidavit must mention the fact that on such and such a day the defendant
filed form 2c in which he admitted the debt and on account of that the plaintiff
is applying for a judgment on admission.
If the defendant wants to pay in instalments, as soon as the plaintiff has got
his judgment, in order for the defendant not to have the judgment executed
against him he must file a:
13
Or: SUMMONS FOR LEAVE (or FOR AN ORDER) TO LIQUIDATE THE JUDGMENT DEBT (or
SUM) IN MONTHLY INSTALMENTS
53
This summons was drafted by:
XYZ Advocates
9th Floor, Premium House,
LUSAKA
Advocates for the
defendant
Note: The Defendant cannot request costs against the plaintiff if admitting
the debt, unless during the proceedings, the plaintiff has e.g. failed to turn up
and so added to the costs faced by the defendant. The defendant can claim
for these extra costs.
This summons must also be supported by an affidavit inn support that must
give solid reasons why the execution of the judgment should be delayed. If the
plaintiff does not agree to payment by instalments, the plaintiff must draft an
affidavit in opposition. The court will sit to decide whether to allow
instalments or not.
The defendant must also file an ex parte application for an order for a stay of
execution of the judgment. With this must be filed:
Under O.2 r.2 counsel can apply to enlarge or abridge the time set for a
hearing to occur. It is only necessary to enlarge the time if the period ordered
by the court within which to perform an act has lapsed. If so, an order to
54
enlarge the time can be sought. Alternatively, if the time given by the court is
too large, counsel can apply (via a Summons for Abridgment of Time,
supported by an affidavit) to bring the time forward i.e. abridge the time so
that the matter can be heard quickly. E.g. if the defendant goes to court to
stay execution and he is given an inter parte hearing date four weeks away,
the plaintiff may think that this is too far away and apply to abridge the time.
[B] Summons for the Consolidation of Causes of Action [O.3 r.3 SCR]
This should be done before trial commences to consolidate (i.e. bring together)
two causes of action into one. Thus, if there are two parallel actions being
pursued by the same parties on the same/similar facts, the two can be
consolidated into one cause to be determined by one court. This avoids a
multiplicity of cases on the same set of facts and avoids two courts potentially
coming to different conclusions on those facts. [Normally, if one party sues,
the other should counterclaim rather than set up another action.]
[D] Summons for Leave to Serve Writ Outside Zambia [O.7 r.13 SCR]
Thus is only possible if the defendant lives/stays outside of Zambia.
55
is of the view that the plaintiff does not have a cause of action against him,
he can apply under O.8 to be struck off from the proceedings. The order must
be made timely in order to avoid unnecessary costs. Thus, the defendant
should not wait for the trial to commence to inform the court that he is
wrongly joined to the proceedings. If there is an inordinate delay, the court
may condemn the applicant in costs - but the application may be allowed if it
merits being done so.
56
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. .
BETWEEN
PETER BWALYA PLAINTIFF
AND
FRED BANDA DEFENDANT
JOHN ZULU THIRD PARTY
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
accident that occurred on 3rd October 2006 and that the defendant claims
against you:
57
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.
And you will be bound by the judgment in the action which may be enforced
by execution against your goods.
58
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.]
“Where the plaintiff in any action before the High Court or the Subordinate
Court proves at any time before final judgment by evidence on oath to the
satisfaction of the court that he has a good cause of action against the
defendant in the amount of K 20 or upwards and that there is probable cause
that the debtor is about to quit Zambia unless he be apprehended and that:
(a) The absence of the defendant from Zambia will materially prejudice the
plaintiff in the prosecution of his case.
(b) The defendant has disposed of or removed out of Zambia his property
or part thereof and the execution of any judgment or order will be
thereby obstructed or delayed,
Such court may in the prescribed manner order such defendant to be arrested
and imprisoned for a period not exceeding six months unless and until he has
sooner given the prescribed security not exceeding the amount claimed in the
action and that he will not leave Zambia without leave of the Court.”
Note: Differs from a judgment summons - you don’t need a judgment before
applying for the arrest of the debtor. The Application is made ex pate and the
caption will read:
Ex Parte Summons for an Order for the Arrest of an Absconding
Defendant/Debtor Pursuant to s. 10 of the Debtors Act Cap. 77
LET THE PARTY attend before the Principal Resident Magistrate in chambers
on the day of 2006 at hours in the
noon on the hearing of an application on the part of the plaintiff for an
59
order that the defendant be arrested and be imprisoned on the grounds set
out in the affidavit in support hereof.
The affidavit must show full compliance with the requirements of s. 10 of Cap
77. I.e.
(a) Must satisfy the court that you have a good cause of action against the
defendant to the amount of K ____________.
(b) The court must be satisfied that there is probable cause that the
defendant is about to quit Zambia
(c) That, if the defendant leaves Zambia, the plaintiff will be prejudiced in
the prosecution of his case.
(d) If the reason for applying is that the defendant has or is about to dispose
of or remove property (or part thereof) from Zambia, the affidavit must
disclose that this has been done or is contemplated with the intent to
obstruct or delay the execution of the judgment that may be entered in
favour of the plaintiff.
If the court is satisfied with the reasons in the affidavit, it will proceed to
order14 the arrest and imprisonment of the defendant for a period not more
than 6 months and the order will have the option for the defendant to provide
the court with sufficient security to the amount claimed and an undertaking
14
Order is addressed to the O-i-C of a police station. You may name the officer in the order if you wish
60
that he will not leave the country without the leave of the Court. As soon as
the court is furnished with sufficient security, it will order the release of the
defendant from custody. [Note: an injunction is to avoid irreparable damage
not to recover a debt.]
15
After judgment there are so many ways of enforcing a judgment e.g. a FiFa that you do not need to have him
imprisoned. Before judgment, you only have the s.10 Cap 77 option to ensure that he does not avoid his
obligations.
61
Once the requirements of the law are satisfied, the court will make the
appropriate order. Difference between O.22 and s.10 of Cap 77 is that an
order for attachment of property does not entail the arrest of the defendant at
the same time. The order is directed at movable and/or immovable assets for
the debtor. A s.10 order is directed at the person in the name of the defendant,
as opposed to property. Once an attachment order is made, the Sheriff of
Zambia and his bailiffs will seize the property and keep it at the Sheriff’s office
or lock it up (if immovable). The costs of execution of the order are payable by
the plaintiff to the Sheriff and at the end of the case, the plaintiff is entitled to
recover such costs from the defendant if he is found liable to the plaintiff.
62
compensated for by way of damages, the court has sufficient reason to deny
the applicant his injunction. [See e.g. American Cyanamid and the BP and
Shell cases].
The order must have an “undertaking” by the plaintiff to the effect that should
the court establish after hearting both parties at the inter parte hearing that
the injunction should not have been granted, and the defendant suffers
damage as a result of the injunction, the plaintiff will compensate the
defendant i.e. if the injunction is discharged on the grounds that it should not
have been granted, the defendant has grounds for claiming damages from the
plaintiff to be assessed by the court. At the foot of the injunction there must
be a “penal notice” advising the defendant that if he disobeys the injunction
he will be cited for contempt and if found guilty he may be sent to jail. Most
magistrates and judges will not sign the order without this penal notice.
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:
16
Injunction will not be permanently granted until affording the other side a chance to be heard.
63
This order was drawn by: MWP Chambers
Lex House
Cairo Rd.
Lusaka
Advocates for the Plaintiff
To: The Defendant17
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 o disobey this order (or injunction) you will be cited
for contempt and imprisoned for contempt of court.
Note: the inter parte summons will have a return date if you do not put the
return date in the injunction order. The same affidavit will be used at the inter
parte hearing. If the affidavit and the Order is clear and well written, the
magistrate may well sign it and give you the order and summons to serve on
the other party without an ex parte hearing actually being held. The
arguments will come at the inter parte hearing.
If the defendant does not file an “affidavit in opposition”, the court will assume
that he concurs with the interim injunction. An affidavit in opposition states
the grounds why an interim injunction should not be granted. The plaintiff
may reply via an “affidavit in reply”. If the defendant wants to reply to this he
must first get leave from the court to do so. What would it be called? A
“Further or Supplementary Affidavit in Opposition”? If no leave is granted, the
plaintiff may request, or the court on its own motion, may strike out the
affidavit from the record.
17
MUST be directed and served on the DEFENDANT personally and NOT his advocates otherwise the Penal
Notice will not apply.
64
IN THE SUBORDINATE COURT OF THE 2013/SSP/0001
FIRST CLASS FOR THE LUSAKA DISTRICT
HOLDEN AT LUSAKA
BETWEEN
PETER BWALYA PLAINTIFF
AND
FRED BANDA DEFENDANT
CERTIFICATE OF EXHIBITS
These are the exhibits referred to in the affidavit of the said Peter Bwalya,
marked “PB1” to “PB6”
If these documents include a Summons you MUST cite the law that authorizes
the application e.g. in a summons to stay execution pending an application
to pay by installments pursuant to O.35 r.10 (4) of the SCR Cap 28 18 of the
Laws of Zambia. The caption will read:
18
Must put this so as not to confuse SCR as the Supreme Court Rules. Also, if the SCR are deficient then you
quote the law from the County Court Rules CCR of the UK.
65
Monthly Installments Pursuant to O.35 r. 10(4) of the Subordinate Court
Rules Cap. 28 of the Laws of Zambia
Note: the caption must be “comprehensive” and show clearly what you are
seeking. If you just asked for a stay without adding the “pending…” the stay
will be open-ended.
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
court19.
(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
not, the sheriff will proceed to advertise in the papers and in the
advert he will indicate the auction date.
19
Note: after judgment is entered the plaintiff must give the defendant three days grace period before he can
apply to enforce the judgment.
66
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.
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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 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:
68
(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
5. Writ of Delivery
(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.
69
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.
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.
70
(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.
71
(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
(v) Nature of enforcement dependent largely on type of judgement e.g.
money judgement or money for delivery of item
(vi) Modes of enforcement include writ of fieri farcias (fifa), writ of elegit,
attachment of debts (garnishee proceedings), attachment of earnings
and judgment summons.
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.
72
(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
73
PART II
CRIMINAL PROCEDURE
74
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
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.
75
Section 7 Subordinate Courts Act-magistrates equal power,
authority and jurisdiction,
76
excess, and no fine exceeding seven hundred and fifty penalty
units
77
Section 12- practice and procedure in CPC or as set out in other
Act
Part VII of CPC Holds preliminary inquiries for cases triable in High
Court
E. COURTS MARTIAL
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
78
conferred on it by this Constitution or any other law.
79
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
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
80
Section 23 and 24- transfer to other judge, Subordinate and Local
Courts
Appeals from the Subordinate Courts
G. SUPREME COURT
Established by Article 92 of the Constitution-
There shall be a Supreme Court of Zambia which shall
be the final court of appeal for the Republic and shall
have such jurisdiction and powers as may be conferred
on it by this Constitution or any other law.
81
Section 4 Cap 25 Cap 25 -single judge sits appeal to full court
Section 7 Cap 25-Jurisdiction in criminal cases- appeals
Section 12 Cap25 first appeals- high court and confirmation or
sentence by High Court-al on interlocutory matters KAMBARANGE
MPUNDU KAUNDA V THE PEOPLE 1990-1992 ZR 91
82
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
83
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
84
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
85
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;
(d) Reiterates the 3 broad powers of the DPP as provided under Article
180 of the Constitution; and
3. ARREST
86
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
87
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
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
Section 33 CPC-detention of persons arrested without warrant
88
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
89
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
90
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
91
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.
92
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
93
CONSTITUTIONAL BAIL
Sections 134 to 137 CPC set out how both charge and
information should be drawn
94
THE COMMENCEMENT
Contains information of-
o Which court trying
o Where trial being held
STATEMENT OF OFFENCE
PARTICULARS OF OFFENCE
96
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
JOINDER OF COUNTS
97
charges founded on the same facts
they form a series of offences
are offences of a similar character
98
OBJECTIONS TO A CHARGE OR INFORMATION (INDICTMENT)
99
Quash or
amend
101
(h) Close of prosecution case;
(i) Consideration of case to answer;
(j) Opening speech by the defence (optional);
(k) Calling of evidence by defence;
(l) Close of the defence case;
(m) Closing speeches;
(n) 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
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 corporation appears by
a representative
102
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-
103
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 fulfill other obligations
o Section 19 grant of legal aid to a person
wishing to negotiate a plea
104
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
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
105
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 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.
106
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
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
107
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
108
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
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
109
defence reply
CASE TO ANSWER
A case to answer is also what is referred to as a prima facie case. The test to
be applied is if the accused elected to remain silent, could not would a
reasonable tribunal directing itself convict on the evidence before the court.
An accused not found with a case to answer is acquitted.
Section 207;
“………at the close of the evidence in support of the
charge, if it appears to the court that a case is made
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
110
(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
111
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….”
112
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:
113
“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”.
114
accused advised on rights
o sworn statement
o unsworn statement
o can remain silent
o call witnesses
115
advocate mitigates
o sentence
116
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)
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.
118
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
THE TRIAL
o Section 272-Arraignment by information
119
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
120
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
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;
121
o In cases where the accused has pleaded not guilty or
MENTAL DISABILITY
accused person must plead when charge is read
where unable to respond must find out why
122
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
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 presidents 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.
123
section 165 CPC- one detained because cannot make a defence
must be brought back when ok
124
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
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
125
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:
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
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
126
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;
(e) forfeiture;
(f) payment of compensation;
(g) corporal punishment;
127
(h) deportation;
(i) any other punishment provided by this Code or by any other law.
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
(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
128
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.
(i) suspended sentences are commonly imposed in order to alleviate
the strain on overcrowded prisons. Or to first time offenders who
have committed minor crimes. 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.
(j) Suspended sentence[4 Marks]
(a) A sentence of imprisonment which is not to take effect immediately
but on the happening of another event;
(b) Relates to part of custodial sentence not carried into effect
FIFTH SCHEDULE
129
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
(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
130
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) 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.
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) Probable effect of sentence contemplated
(e) Type and gravity of the offence.
(f) Mental state – including a degree of diminished responsibility
(g) Lack of premeditation - lack of long premeditation may help reduce
sentence. Spur of the moment kind of thing, or heat of passion.
(h) Character - good character; standing in community and having
reputation for kindness and being an exemplary family man; .
(i) Remorse - lack of remorse is an aggravating feature.
(j) Capacity for reform and continuing dangerousness
(k) Due to youth or commitment to undergo rehab for drug or alcohol
addition.
(l) Views of the victim’s family
(m) Delay up until time of sentence
(n) How long the accused has been in custody.
(o) Guilty plea
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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
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