7th, March, 2024
INTRODUCTION
In a quest to ensure
consistency and fair practice in civil and criminal proceedings, the
legislatures have enacted procedural laws.
Procedural laws are rules that govern the court's proceedings in
criminal or civil matters. For instance, The Criminal Procedure Code[1] is the chief authoritative statute in criminal
proceedings in Zambia. The Constitution of Zambia of 1996 (As Amended in
2016),[2] established the courts,
their functions and their jurisdiction. The High Court Act No. 21 of 2016, divided
the High Court into four divisions that is the Industrial Relations,
Commercial, Family and Children’s Court. The High Court Amendment Rules,
2020, have altered the way civil proceedings are begun in the High Court. Procedural
laws establish standards that courts have to conform to. In Twampane Mining
Co-operative Society Limited v Storti Mining Limited,[3]
it was held that adherence to procedural law is imperative, it is non-negotiable.
The same goes for litigants in commencing legal proceedings they are required
to adhere to what the relevant laws provide as specified in BP Zambia v
Zambia Competition Commission,[4] Failure to do so may
destroy the case if the irregularity is non-curable.[5] The purpose of this piece
of writing is to briefly explain the different modes of commencement of civil
proceedings in the Subordinate Court and the High Court.
COMMENCEMENT OF
CIVIL PROCEEDINGS IN THE SUBORDINATE COURTS
According to Article
266 of the Constitution of Zambia of 1996 (As Amended in 2016),[6] “subordinate court” means
a court subordinate to the High Court. Subordinate Courts are also referred to as
Magistrate Courts simply because magistrates are the ones that preside in these
courts. The courts are regulated by the Subordinate Courts Act,[7]
which prescribes the structure, jurisdiction, limitations as well as procedure
of the courts. The following are the modes of commencement of civil proceedings
in the Subordinate Court.
i. Writ
of Summons
A Writ of Summons is
a court document that commences legal proceedings and informs the defendant
that the plaintiff has started civil proceedings against them in a court of
law. The Writ of Summons is the default or primary mode by which civil
proceedings are instituted in the Subordinate Court unless otherwise, a statute
has provided a different mode as provided by Order VI, Rule 1 of the Subordinate
Courts Act.[8]
A Writ of Summons has to contain among many things the full names, addresses of
the plaintiff and defendant, the formal parts as per schedule, dates, signature
of the plaintiff and an endorsement of relief sort in summary form.
A Writ of Summons in the Subordinate
Court is never accompanied by a statement of claim or a defence unless the
Magistrate in the interest of justice makes an order for their submission. This
is so because the proceedings in the Subordinate Court are in a summary manner
without pleadings as provided by Order XVIII, Rule 1 of the Subordinate
Courts Act,[9]
and also because some of the members in the Subordinate Court are lay, as
specified by the Order XVIII, Rule 2 of the Subordinate Courts Act.[10]
ii. Default Writ
of Summons
In circumstances where the
claim is in respect of a debt or liquidated demand, the plaintiff in commencing
an action in the subordinate courts may file a Default Writ of Summons as
provided by Order VI Rule 4 (1) of the Subordinate Courts Act.[11] The Default Writ of Summons
is accompanied by an affidavit verifying debt signed by the plaintiff and a
form of Admission, Defence and Counter-claim in the prescribed form as provided
by Order VI Rule 4 (2) of the Subordinate Courts Act.[12]
COMMENCEMENT OF
CIVIL PROCEEDINGS IN THE HIGH COURT
The High Court has
unlimited and original jurisdiction in civil and criminal matters as per Article
134 (a) of The Constitution of Zambia of 1996 (As Amended in 2016),[13] In relation to instituting
legal proceedings, the law provides the various modes of commencement of legal
proceedings. The following are the different ways in which a civil action may
be commenced in the High Court General List and the various divisions in the
High Court.
1.
Commencement
in the High Court General List
The High Court General List comprises the Principal Registry in Lusaka and the District Registries in the various provincial capitals. Commencement of civil proceedings in the High Court General List is provided for by Order VI, Rule 1 High Court Amendment Rules, 2020. It provides as follows:
1. (1) Except as otherwise provided by any written law or these Rules, an action in the High Court shall be commenced, in writing or electronically by writ of summons endorsed and accompanied by—
(a) a statement of claim;
(b) list and description of documents to be relied on at trial; and
(c) list of witnesses to be called by the plaintiff at trial; and
(d) letter of demand whose receipt shall be acknowledged by the defendant or an affidavit of service attesting to the service of the letter of demand, which shall set out the claim and circumstances surrounding the claim in detail.
b. A Statement of Claim: It sets out the material facts on which the plaintiff relies to support their claims against the defendant.
c. List and Description of Documents to be relied on at Trial: It enumerates the document to be relied on at trial and describes each document to show their relevance, admissibility and weight.
d. List of Witnesses to be called by the Plaintiff: It is a list with the names, addresses, and categories of the witnesses written down one below the other to rely on at trial.
e. Letter of Demand: It is also known as a Demand Letter or Letter Before Claim. The Letter of Demand outlines the legal claim that demands payment or fulfilment of a duty because the receiver is allegedly in breach of the law or a contract.
All these documents are needed to commence legal proceedings in the High Court General List.
2.
Other
Modes of Commencement of Civil Proceedings in the High Court
i. Originating Summons
This mode is used in the
commencement of civil proceedings in matters which under any written law or
rules may be disposed of in chambers as provided for by Order VI, Rule 3 of the High Court Amendment Rules, 2020 and Order XXX, Rule 1of the
High Court Act.[14] Usually, such matters
will not involve substantial dispute on the facts. The originating writ of
summons is expected to be accompanied by an affidavit in support while the
defendant responds by filing an affidavit in opposition. Order XXX, Rule 2 of
the High Court Act,[15] provides a detailed list
of matters that may be dealt with in chambers. Additionally, matters stipulated
under any other statute or rules or law and practice for the time being
observed in England may also be disposed of in chambers thus they may be
commenced through Originating
Summons as elaborated in Rural Development Corporation Ltd v Bank of Credit
& Another.[16]
ii. Originating Notice of Motion
This mode is used to
commence civil proceedings where it is expressly provided for by the relevant
statute or when the relevant statute does not specify a procedure—that is when
the relevant law only states that a proceeding must begin with an application,
without specifying what kind of application that must be made. Even though it
is heard in open court, most of the evidence of a proceeding began through an
Originating Notice of Motion is presented to the
court through affidavits. The following are examples of applications that began
through
Originating Notice of Motion:
v
Judicial Review
through Order 53 Rule 5 of the Rules of the Supreme Court of England (White
Book)
v
Application under
the Rent Act Cap 206, Rule 6
v
An application
under the Landlord and Tenants (Business Premises) Rules, Rule 3
iii. Petition
It is a formal request for
a court order that outlines the justification for its necessity. It can be used
in cases where it is required by a written law or the rule of the court as
elaborated in Matilda Mutale v Emmanuel Munaile.[17]
The following are examples of matters that began through a petition in the High
Court:
Election Petition relating to the parliamentary elections as per Section
100 (2) (a) of the Electoral Process Act.[18] The case of Amon Banda
Petitioner v Peter Phiri and Electoral Commission of Zambia,[19]
Protection of Fundamental
Rights and Freedoms under Article 28 (7) of The Constitution of Zambia
of 1996 (As Amended in 2016),[20] and also as provided by the Protection
of Fundamental Rights and Freedoms S.I No.156 of 1969. The cases of Mundia
Sikatana v The Attorney-General,[21] and Kelvin Hang'andu V
Law Association of Zambia,[22] are illustrative of this
as these cases were brought before the High Court through a petition.
Divorce petition as
provided for by the Matrimonial Causes Act,[23]
The case of Miyanda Mweetwa Matambo v Edwin Matambo,[24] is illustrative of this as this case was brought
before the High Court through a petition.
The winding up of companies
under the Companies Act No 20 of 2017 is brought to the high court through
petition. The case of Lusaka Meat Supplies Ltd & Others v Szeftel,[25] is illustrative of this
as this case was brought before the High Court through a petition.
Referendum Petitions under
the Referendum Act Cap 14 are brought before the High Court through a
petition as provided in Section 11(1) of the Referendum Act Cap 14.
iv.
Appeal
It is a request to a higher
court to review a decision made by the lower court or tribunal when a party to
litigation is dissatisfied or aggrieved by the decision. The right to appeal is
not inherent in nature but it must be provided for by the relevant statute.
Proceedings in the High Court can begin through an appeal in the following
instance:
In the case of
a tribunal
A party dissatisfied or aggrieved by the
decision of the tribunal for instance, the decision of the registrar under the Lands
and Deeds Registry Act Cap 185 can appeal to the High Court/
In the case of
a Subordinate Court
A party dissatisfied or
aggrieved by the decision of a Subordinate Court can appeal to the High Court
as provided by Section 28 (1) of the Subordinate Courts Act,[26] which may allow or reject
the appeal. According to Order XLVII of the High Court Act,[27] an appeal to the High Court
is done through the notice of appeal filled in the Subordinate Court with a
memorandum of appeal attached
v.
Notice of
complaint
It is used to commence
proceedings in the industrial relations division of the high court, accompanied
by an affidavit as provided in Part III of the Industrial And Labour
Relations Act.[28] The Industrial Relations Division
is the division responsible for hearing all matters dealing with employment,
trade unions and so forth. The case of Albert Mupila v. Yu-Wei,[29] is illustrative of this
as this case was brought before the Industrial Relations Division through a Notice
of complaint.
vi.
Writ of
Habeas Corpus
It means “show me the body”
It is a fundamental prerogative writ that protects a person against unlawful
and indefinite imprisonment. It is also used to commence legal proceedings in
the High Court, in that once issued by a court it requires one who holds
another custody to produce the person before the court for a special purpose. The
case of Mutale v Attorney-General,[30] states that the High Court has supreme power
in the matter of Habeas Corpus, thus once it acquits, one cannot appeal
against the acquittal. The proposition that exists when a high court acquits in the
matter of Habeas Corpus is that the detention of the person acquitted
was unlawful.
[1] The
Criminal Procedure Code Chapter 88 of the Law of Zambia
[2] The
Constitution of Zambia of 1996 (As Amended in 2016) Chapter 1 of the Law of
Zambia
[3] Twampane
Mining Co-operative Society Limited v Storti Mining Limited, S.C.Z Judgment No.
20 of 2011
[4] BP
Zambia v Zambia Competition Commission (SCZ 21 of 2011) [2011] ZMSC 21 (21
November 2011)
[5] Stanley
Mwambazi v Morester Farms Limited (1977) Z.R. 108
[6] The
Constitution of Zambia of 1996 (As Amended in 2016) Chapter 1 of the Law of
Zambia
[7] Subordinate
Courts Act Chapter 28 of the Laws of Zambia
[8] ibid
[9]
[10]
[11]
[12]
[13] The
Constitution of Zambia of 1996 (As Amended in 2016) Chapter 1 of the Law of
Zambia
[14] High
Court Act Chapter 27 of the Laws of Zambia
[15]
[16] Rural
Development Corporation Ltd v Bank of Credit & Another (S.C.Z. Judgment 8
of 1987) [1987] ZMSC 14 (22 April 1987)
[17] Matilda
Mutale v Emmanuel Munaile SCZ Judgment No. 14 of. 2007
[18] Electoral
Process Act No. 35 of 2016
[19] Amon
Banda Petitioner v Peter Phiri and Electoral Commission of Zambia,2021/HP /EP
/0028
[20] The
Constitution of Zambia of 1996 (As Amended in 2016) Chapter 1 of the Law of
Zambia
[21] Mundia
Sikatana v The Attorney-General (1982) Z.R. 109 (H.C.)
[22] Kelvin
Hang'andu V Law Association of Zambia (SCZ Judgement NO 36 OF 2014)
[23] The
Matrimonial Causes Act, No. 20 of 2007
[24] Miyanda
Mweetwa Matambo v Edwin Matambo 2019/HPF/D146
[25] Lusaka
Meat Supplies Ltd & Others v Szeftel (Appeal 4 of 1973) [1974] ZMSC 5 (11
January 1974)
[26] Subordinate
Courts Act Chapter 28 of the Laws of Zambia.
[27] High
Court Act Chapter 27 of the Laws of Zambia
[28] The
Industrial And Labour Relations Act Chapter 269 of The Laws Of Zambia
[29] Albert
Mupila v. Yu-Wei COMP/ IRCLK/222/2022
[30] Mutale
v Attorney-General (1976) Z.R. 139
(H.C.)
[31] Fred Hamaamba v The Attorney General, 2017/HP/1778
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