PART I: HIGH COURT PROCEDURE

Commencement of Suit

(i) Usually preceded by attempt for an out of court settlement(ii) Consider capacity of parties i.e. whether person to be sued can be

sued/who to sue(iii) Determine cause of action to sue upon(iv) Decide on means of instituting process: Writ of Summons, petition,

originating summons, originating notice of motion(v) New Plast Industries v The Commissioner of Lands and Attorney

General (2001) SCZ No. 8: Mode of commencement of any action is generally provided for by statute – not determined by relief sought

(vi) Must be commenced in the appropriate court (with jurisdiction)(vii) Decide Court Registry(viii) Must be done within reasonable time to avoid being statute barred(ix) Joseph Gereta Chikuta v Chipata Rural Council (1974) ZR 24 Held: There is no case where there is a choice between

commencing an action by writ of summons or by an originating summons. The procedure by way of originating summons only applies to those matters which may be disposed of in chambers. Where any matter is brought before the high court by means of originating summons when it should have been commenced by writ, the court has no jurisdiction to make any declaration.

Four Commonest/Major Originating Processes are:

(a)Writ of Summons and a Statement of Claim - most common - rule is unless the law provides otherwise, all actions commence this way see O.6 r 1(1).

(b)Originating Summons - for chamber issues on affidavit evidence.

(c) Originating Notice of Motion or Originating Motion

(d)Petition - e.g. Divorce, Elections

Originating Notice of Motion - same as Originating Motion Order VI rule 7 HCR Cap 27. - “Every originating notice of motion must name a motion day (to be fixed by the Registrar) and must state clearly the terms of the order sought.” This is not too helpful and assumes that the reader already knows a lot about this originating process. Thus, see Odgers 24th Edition p.416 and also Order V rule 5 of the RSC 1999. O.5 r.5

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- Actions may be begum if and only if this procedure is permitted by the RSC or any other Act. Where an Act demands that the action must commence by an originating notice of motion but the action has started otherwise, there is the possibility 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.

Essential Points to Note About an Originating Notice of Motion

(a)A notice of Motion is filed with an affidavit in support.

(b)It is heard in open court (even though most of the evidence is by affidavit).

(c) Where there is a respondent to the Originating Notice of Motion, it is not mandatory for the respondent to acknowledge service. However, if the respondent desires to be heard, he must react and he/she will probably also have to file an affidavit in opposition.

(d)The hearing is in open court on affidavit evidence and the court may call the deponent to court to be cross-examined.

(e)The application may be made ex parte or inter partes.

See Re: Kamaya [1987] ZR p.7 - well written judgment on originating motion

Examples of when an Originating Notice of Motion may be used:

(a)When a client wants to apply to be appointed as a certified bailiff (who issues warrants of distress to recover rentals).

(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. in Zambia if you want to dissolve a company you do so by Petition, but White Book says by originating notice of motion):

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a. If you want the affairs of a company investigated by someone appointed by the court, proceed by an origination motion and supporting affidavit.

b. Certain documents under the Companies Act must be lodged or declared within the stipulated period. Where you are out of time and want it extended, you may apply to have the time extended by originating notice of motion.

c. If the register of members under the Company Act needs to be rectified by court, you may proceed by originating notice of motion.

d. 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.

NOTE: The Originating Notice of Motion is one of the four major originating process and is used IF AND ONLY IF this method is permitted by the RSC or any other Act. Thus on the Caption of the Originating Notice of Motion you must cite the rule permitting the use of this procedure e.g. if for Judicial review.

NOTICE OF MOTION PURSUANT TO ORDER 53 r 5 RSC 1999

The Notice of Motion is filed together with an affidavit in support and the application may be made ex parte or inter partes. 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.

The Steps in An Action started by Writ and Statement of Claim

Stage One: File, Uplift and serve the Writ and Statement of Claim on the defendant.

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Stage Two: the defendant files in a Memorandum of Appearance (conditional or unconditional) and a Defence (and possibly a counterclaim on the plaintiff).

Stage Three: The Plaintiff files a Reply (and possibly a defence to any counterclaim).

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.

Stage Six: Court will set a hearing date.

At the trial, you can only rely on the documents filed in the bundles. If you want to use new documents you must apply for leave to do so and such application is subject to costs.

REQUEST TO SET DOWN FOR TRIAL PURSUANT TO O. r.

WE HEREBY REQUEST that the matter be set down for trial before a judge sitting alone at Lusaka. The probable length of the trail is one day. The requisite bundles of pleadings and documents accompany this request.

Dated at Lusaka this day of 2006

Palan and George Advocates6th Floor Premium HouseLUSAKAAdvocates for the Plaintiff

At Trial

An action commenced by a Writ is more common than any other way.

1. Writ and Statement of Claim2. Memorandum of Appearance and Defence (and possibly

counterclaim)

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3. (Within 14 days after filing memo and defence) the court gives Orders for Directions (pursuant to O.19 of the HCR) Judge normally asks counsel for the plaintiff to draft this Order.

4. Reply (and possibly defence to counterclaim) 5. Etc.

Order for Directions

Parties should have a timetable and know what will happen and when. The Orders for Direction starts with the Reply and continues from there. [Note: a Party can take action later if the other side does not follow/comply the Order).

ORDERS FOR DIRECTIONS

The Defendant having entered appearance and filed a defence, IT IS HEREBY ORDERED AS FOLLOWS:

1. That the Plaintiff files a Reply and Defence to Counterclaim (if any) within 7 days.

2. That discovery be by list within 7 days from the date of Reply and Defence to counterclaim (if any).

3. That Inspection (if any) be within 10 days from the date of Discovery.

4. That the place and mode of trial be set down within 7 days of closing the pleadings.

5. That there shall be liberty to apply.6. That costs be in the cause.

Dated at Lusaka this day of 2006

___________________JUDGEOR

Appearance and Defence having been filed, Directions and Orders are hereby given as follows:

1. That the Plaintiff shall deliver a Reply within 14 days.2. There shall be discovery by list followed by inspection of documents

at least 7 days after service of notice requiring the same.3. Trail shall be at Lusaka before a single judge.

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4. There shall be liberty to apply.5. The costs for and incidental to these Orders shall be in the cause.

Statements of Claim - Points arising for the Exercise

[A] Identify the Main Cause of Action

When the facts are given, identify the main cause of action and do not focus on peripheral issues. Focus the Statement of Claim on the Main Cause of Action.

[B] Particulars

In road traffic accidents, give the particulars for (a) negligence, (b) injury and (c) special damages. In all other statements of claim, NO particulars are requires EXCEPT for special damages. Plead the facts and do not give the particulars.

Orders for Directions

The assumption is that the Parties will comply with these orders, but they may not do so. There may be long delays in the process e.g. if you receive a file from another firm to take over a case e.g. because a conflict of interest has arisen, and the case went up to Orders for Directions two years ago but nothing has happened since.

If you are acting for the Plaintiff:First file a Notice of Appointment of Advocates.

There WILL be a cause No. as case has started.

HEADING

NOTICE OF APPOINTMENT OF ADVOCATES

TAKE NOTICE that the undersigned Advocates have been appointed to have conduct of this action for the Plaintiff.

Dated the day of2006

ZIALE ChambersPlot 1234

6

Church RoadLusaka

To: the Defendant and his advocates Lex ChambersLubu RoadLusaka

Second, file a Notice of Intention to Proceed

HEADING

NOTICE OF INTENTION TO PROCEED

TAKE NOTICE that 30 days hereafter the Plaintiff intends to proceed with his action.

Dated the day of 2006

ZIALE ChambersPlot 1234Church RoadLusaka

To: the Defendant and his advocates Lex ChambersLubu RoadLusaka

If you are acting as counsel for the Defendant and the plaintiff has delayed for too long in prosecuting the case:

File a Summons (with a supporting affidavit) to have the case dismissed for want of prosecution

HEADING

SUMMONS TO DISMISS ACTION FOR WANT OF PROSECUTION

LET ALL PARTIES concerned attend before the Honourable Justice on the day of 2013 at hours as

counsel for the defendant can be heard on the application to have this action dismissed for want of prosecution [Can add affidavit and costs].

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Legal ChambersLubu RoadLusaka

To: The Plaintiff and his advocates ZIALE ChambersChurch Road, Lusaka

There will be an affidavit in support of this summons. The court must be satisfied that there has been an inordinate and inexcusable delay. [There are many cases where the Court has found the delay inordinate but excusable.] The Affidavit should exhibit e.g. letters to the Plaintiff that catalogue that delay has been caused by the Plaintiff not filing in process when required to do so and failing to respond to letters. State any adverse effects on the defendant of the delay e.g. money locked up in a bank account.

AFFIDAVIT IN SUPPORT OF A SUMMONS TO DISMISS ACTION FOR WANT OF PROSECUTION

Notice of Appointment of Advocates and Notice of Change of Advocates

Notice of Appointment of Advocates - litigant had no advocates but now he appoints you to represent him once the case proceeds. [E.g. if there is more than one plaintiff or more than one defendant, one of which did not initially appoint an advocate to act on is behalf, but is now appointing one.] Notice of Change of Advocates is filed when a new firm is taking over from another firm who is ceasing to act for a particular client. Note: If there was an advocate and now you have been appointed, you can file a Notice of Appointment but this is frowned upon as it introduces ambiguity i.e. if could be that more than one firm has been appointed to work for the litigant rather than on replacing the other. However, if a second firm is being appointed, then it is correct to file a Notice of Appointment and not a Notice of Change.

Pleadings: see Order XVIII of the RSC 1999 and Odgers pages 139 - 182. The purpose of pleadings is to clearly ascertain the controversy between the parties i.e. the matters to which the plaintiff is seeking relief. The purpose of the pleadings is also 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.

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Pleadings(i) What are they: Documents exchanged by the parties to an

action and they set out the claims made and the defenses raised by the parties

(ii) Statement of claim, defence, reply, counter claim and defence to counterclaim

(iii) Define issues of fact and law to be deceided(iv) Held in William David Wise v E. F. Hevey Ltd (1985) ZR 179: -

- Pleadings are supposed to serve the useful purpose of defining the issues of fact and law to be decided;

- to give each party distinct notice of the case intended to be set up by the other; and,

- to provide a brief summary of each party’s case from which the nature of the claim and defence may be easily apprehended.

(v) Further pleadings: rejoinder for defendant; surrejoinder by plaintiff, rebutter by defendant, surrebutter by plaintiff

Cardinal Rules of Pleadings

1. Pleadings must be MATERIAL

2. Pleadings must be CERTAIN

3. Pleadings must be CONCISE

O18, r7 => summary

1. Plead facts not the evidence with which you intend to prove those facts. But the facts you plead must be material.

2. Plead material facts only but in stating the facts do not give the evidence by which the facts will be proved.

3. State the facts concisely.

A Test of a Good Pleading is: “By reading the pleading, can the reader have a clear conception of the case being put before the court?

INJUNCTIONS

A very wide topic. See Order 27 rules 1 to 5 of the HCR. of Cap 27 (i.e. O.27 r. 1 to 5 HCR. Cap 27) and Order 29 of the RSC. 1999.

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An application for an injunction may be made before filing your case and may be made ex parte or inte partes. Any party to an action may file for an injunction. There are generally two types of injunction:

a. Restraining injunction: more common, restrains a party from doing an act.

b. Mandatory injunction: rarely granted, will order a particular act to be done.

All injunctions are discretionary orders of the court. When you apply for an injunction you must also file the proposed order that you want the court to sign (together with the summons and the supporting affidavit).

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The order will look like:

IN THE HIGH COURT OF ZAMBIA 2006/HP/ _ _ _ _ AT THE PRINCIPAL REGISTRY (HOLDEN) AT LUSAKA

(Civil Jurisdiction)

Between

Jack Tembo Plaintiff and John Banda Defendant

ORDER

It will have a statement of the order sought.

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.

Principles for Granting an Injunction

The principles for granting an injunction are summarized in many cases but be familiar with American Cynamide Co. Ethicon Ltd. [1975] AC 396 or [1975] 2 WLR 316. In addition read at least four or five Zambian cases e.g. Shell and BP (Z) Ltd. v Conidaris & Others [1975] ZR 174, Turnkey Properties and Lusaka West Development Co. etc. Thus, in the Shell and BP case, the SCZ held, inter alia:

(vi) 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.”

(vii) 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

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balance of convenience to the parties. The burden of showing the greater inconvenience is on the plaintiff.

(viii)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.”

The principles for injunctions are:

(a)There must be a serious question of law to be determined in the main action.

(b)The court will look at the balance of convenience between the parties.

(c) The court will consider I\whether damages are a sufficient/adequate remedy (if the party will receive sufficient money in damages as redress, the court wil refuse injunction).

(d)The court will consider if the right to relief is clear. I.e. there must be a solid case on which you are basing your case. The case must not be vague.

PART II: SUBORDINATE COURT

Hierarchy of Subordinate Courts

Principal Resident Magistrate Jurisdiction of these courts Senior Resident Magistrate is set out in ss. 20-23 of Resident Magistrate the Subordinate Courts ActMagistrate Class I Cap. 27 (amendment in 1998Magistrate Class II Act No. 25 of 1998 - but only Magistrate Class III two pages long.)

s. 20 sets out powers of magistrates in civil matters dealing with liquidated claims.

P. Resident Magistrates Actions where liquidated damages doesn’t exceed K 30m. S. Resident Magistrate Actions where liquidated damages doesn’t exceed K 25m.

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Resident Magistrate Actions where liquidated damages doesn’t exceed K 20m.Magistrate Class I Actions where liquidated damages doesn’t exceed K10m.Magistrate Class II Not specified in the Act Magistrate Class III Not specified in the Act

s. 20-23 sets out powers of magistrates in civil matters dealing with land.

P. Resident Magistrates Actions where land/property doesn’t exceed K 30m or

Annual rent does not exceed K6m. S. Resident Magistrate Actions where land/property doesn’t exceed

K 25m or Annual rent does not exceed K5m.Resident Magistrate Actions where land/property doesn’t exceed K

20m or Annual rent does not exceed K4m.Magistrate Class I Actions where land/property doesn’t exceed K5m

or annual rent does not exceed K1.2m.Magistrate Class II Not specified in the Act Magistrate Class III Not specified in the Act

When you have been engaged by a client and have received instructions from him/her, 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). Copy this precedent on your computer but they can also be bought from Government Printer. 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. [must disclose that defendant has no defence]. 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].

Jurisdiction of Subordinate courts is limited (unlike the High Court). A plaintiff can’t commence:

(a)an action for habeas corpus(b)an action related to the right or duty of office(c) an action relating to the validity of a will(d)an action touching on the legitimacy of a person

1 An affidavit is written and sworn by a “deponent”.

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(e)an action/petition to dissolve a marriage (except a polygamous marriage).

Subordinate Court Act (Cap 27) is not a complete document in that it does not include everything you need to know e.g. how to undertake interlocutory applications. These are in the Subordinate Court Rules – appended to the Act and known as “orders” (45 in total)

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

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

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

b. Subordinate court of the Second Class - presided over by a Magistrate Class II.

c. Subordinate court of the Third Class - presided over by a Magistrate Class III.

Section 4: all magistrates have jurisdiction in the geographical districts where they are constituted. Thus a magistrate from Ndola cannot come to Kabwe to hear a case without authority from the Chief Justice. (See section 24 – the CJ has the power to extend the jurisdiction of a magistrate under his hand and seal. Without this express authority of the CJ it is not possible for a magistrate to act in other districts.

The jurisdiction of magistrates is limited (unlike the authority of the High Court). Following Act Number 25 of 1998, the jurisdiction of magistrates in civil matters was increased. Thus, now:

A PRM can hear civil cases with claims up to a value of K 30m.

A SRM can hear civil cases with claims up to a value of K 25m.

An RM can hear civil cases with claims up to a value of K 20m.

A Magistrate Class I can hear civil cases with claims up to a value of K 10m.

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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).

No magistrate has jurisdiction to hear an application for habeas corpus.

No magistrate has jurisdiction to hear cases where the validity of a will is in question.

No magistrate has jurisdiction to hear cases where person’s legitimacy is in question.

No magistrate has jurisdiction to dissolve a statutory marriage (A subordinate court can dissolve a polygamous marriage contracted under African Customary law - but most go to a local court.) Note that even if a couple has assets of over K 2 billion, if they were married under African Customary law then the magistrate has no jurisdiction to dissolve the marriage. [Advice: dissolve marriage in Subordinate court and do property settlement in High Court

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 PRM can hear land title cases where the land does not exceed a value of K 30m or the annual rent K6m.

An SRM can hear land title cases where the land does not exceed a value of K 25m or the annual rent K5m.

An RM can hear land title cases where the land does not exceed a value of K 20m or the annual rent K4m.

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.

S 23 - a defendant has the right to object to the jurisdiction of the court and if so, the magistrate can transfer it to the High Court.

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Subordinate Court Rules - “orders” - provide for the mode of commencing an action, method of service of documents on the parties, capacity of parties to sue, mechanisms for discontinuing a matter etc. and these orders are arranged in order from I to XLV.

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.

S. 11 - subordinate courts are courts of record i.e. proceedings are supposed to be recorded and if not you may find it difficult to appeal. You may politely request that the proceedings are recorded.

If the plaintiff is claiming damages - it is advisable not to specify the amount i.e. the claim is for unliquidated damages e.g. not advisable to put a figure in an action for defamation.

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.

The Subordinate Court Rules (“Orders”)

The Subordinate Courts Act confers powers on the Chief Justice to make subordinate court rules called “orders”.

Order I: General Forms of Process, Fees etc.

Order I deals with matters relating to the sealing of writs/default writs etc. Rule 1 - defines “proper officer of the court” as “any magistrate exercising jurisdiction in that court, any clerk of the court2 acting under the

2 responsible for issuing all sorts of documents.

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provisions of section 34 of the Act or any officer appointed in writing as such by any magistrate exercising jurisdiction in the particular court.”

After preparing a writ/any document you must present it to the clerk of the court in the civil registry for filing and issuance. On presenting the document, the court officer will “seal” the document and this signifies that it has duly been “issued” by the court.

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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Standard Heading of a Writ/other document3

IN THE SUBORDINATE COURT OF 2006/SSP4/_ _ _ _THE FIRST CLASS5 OF THE LUSAKA6 DISTRICT HOLDEN AT LUSAKA

Between JAMES BOTA Plaintiff

And

BEN MUTALE Defendant

Order II: Computation of Time

Rule 1 - Commencement of a limited time. The Zambian Act of Limitations (a short 4 page Act) simply imports the Statute of Limitations of 1939 of England (a long Act) into the Law of Zambia. For most civil actions an action must be started within six (6) years from the day following the date on which the limitation period starts e.g. if a contract is breached on 1st

June 2006, the six year period begins running from the 2nd of June 2006. [rule 1(a)] Note that there are other limitation periods for civil actions e.g. for a foreclosure of a mortgage (other than a mortgage on a ship) the mortgagee can initiate a foreclosure action within 12 years from the time that the mortgage debt became payable but was not paid (s. 18(2) of the 1939 Act).

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.

Order III: Miscellaneous Provisions

3 Note, the necessary court fees must be paid and receipt obtained.4 SSP is Lusaka, SQ is Choma/Mazabuka etc. 5 May be Second Class or Third Class is the claims are small.6 May be Livingstone, Kitwe etc.

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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 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 2 - power to make interlocutory orders

A magistrate can make an order “in his own motion” e.g. if he makes an error and he wishes to correct it i.e. a magistrate is not debarred from making an order even if no party to the action has asked for it.

Rule 3- Consolidation of actions

Joining two or more actions/matters together. The parties must be the same and the facts must be similar e.g. where two people sue each other in relation to the same events in different courts. Rationale: if tried by two different magistrates there is the possibility that they will come up with two different or conflicting judgments. There must be an order by a magistrate consolidating the two matters. Usually the person filing first will be the plaintiff in the consolidated action and the other party the defendant. [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].

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 IV: Employment of Barristers and Solicitors

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All lawyers have the right of audience before a subordinate court (inc. SC) but not before a local court. All lawyers are expected to guide their clients professionally and if you fail O4, r2 may apply i.e. you may be liable to costs e.g. if a lawyer proceeds with a case when he knows that the action has no merit. I.e. if the lawyer knowingly does so or knowingly prosecutes maliciously - the lawyer may be asked to met the costs of the proceedings. [Note: you are not condemned to pay costs because you lose a case but only if you proceed with a case that you know is no case or is being prosecuted maliciously e.g. if you go to court when you know that a debt has already been paid. [Note: you can only get interest on a debt if you have a judgment.].

Order V: Evidence

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.

Rule 2 - intended to avoid a situation where witnesses communicate outside the court during the course of the trial before giving testimony. The court does not want corroboration as the result of collusion between the witnesses.

Part II – Documentary Evidence

Documentary evidence means documents that are tendered before court as evidence which is different from oral (viva voce) evidence e.g. books of accounts, government gazettes, statutes, official communications of Government (e.g. appointment letters), books of science, foreign laws.

Rule 3 - Books of accounts includes documents such as bank statements (usually produced by a bank official in e.g. a mortgage action) and ledgers.

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Rule 4 - Qualification: In Zambia the Government Gazette is only printed by the Government Printer. Further, only Government gazettes from former British colonies and dominions are admissible in a Zambian court.

Rule 5 - Government communication e.g. a government letter of appointment as PS/Minister

Rule 8 - public maps are admissible ONLY IF in existence prior to the commencement of the action.

Part III – Affidavits

Affidavits are special documents and are one way that evidence can be adduced before court. When dealing with chamber matters, witnesses are not allowed to adduce oral evidence, it must be by way of affidavit.

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 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 12 - An affidavit cannot be commissioned by a lawyer of the deponent or by any of his partners.

Rule 13 - A court may (i.e. it is at the court’s discretion7) permit a defective affidavit in court proceedings if sworn before a duly authorized person. Defect must not go to the root of the case, only a defect in form. E.g. you write Pete Bwalya instead of Peter Bwalya as Plaintiff in the “Heading”.

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 16 - Affidavit must contain only statements of facts and circumstances that the deponent knows from his personal knowledge “or information he believes to be true”. 7 If the court does not use its discretion you will have to amend the affidavit under Order V, rule 14.

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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.

Certificate of Exhibit(s)

Certificate of Exhibits has the same heading as the affidavit and the caption will be “Certificate of Exhibits” i.e.

IN THE SUBORDINATE COURT OF THE 2008/SSP/0001FIRST CLASS FOR THE LUSAKA DISTRICTHOLDEN AT LUSAKA

BETWEEN PETER BWALYA PLAINTIFF

ANDFRED BANDA DEFENDANT

CERTIFICATE OF EXHIBITS

These are the exhibits referred to in the affidavit of the said Peter Bwalya, marked “PB1” to “PB6”

Dated this day of 2008

Before me: _____________________________Commissioner for Oaths

ABC and Associates 10th Floor, Nyumba HouseNjila AvenueLUSAKAAdvocates 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”.

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A Jacket

IN THE SUBORDINATE COURT OF THE 2008/SSP/0001FIRST CLASS FOR THE LUSAKA DISTRICTHOLDEN AT LUSAKA

BETWEEN PETER BWALYA PLAINTIFF

ANDFRED BANDA DEFENDANT

AFFIDAVIT IN SUPPORT OF …….

ABC and Associates 10th Floor, Nyumba HouseNjila AvenueLUSAKAAdvocates for the Plaintiff

The “jacket” is attached last with it “facing out”.

Rule 19 - if an exhibit is hand written it must be accompanied by a type document which must perfectly correspond with the hand written document. The typed copy must be certified as correct in the affidavit.

The “Jurat”

Every affidavit ends with a jurat as shown below”

SWORN by PETER BWALYA8 )At Lusaka this 6th day of )June 2006 )

Before me:________________________Commissioner for Oaths

ABC and Associates 10th Floor, Nyumba HouseNjila AvenueLUSAKA

8 SWORN and DEPONENT’S NAME in capitals and Bold.

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Advocates for the Plaintiff

Rule 20

(a)affidavit to be headed in the court and in the cause or matter. Caption will read e.g. AFFIDAVIT OF SERVICE, AFFIDAVIT IN SUPPORT OF …..

(b)Full name, trade/profession, residence and nationality of the deponent i.e. The Affidavit will start:

I, Peter Bwalya, of the City and Province of Lusaka in the Republic of Zambia do hereby make OATH9 and say as follows:

1. That my full names are as stated above.2. That I reside at Plot No. 1234; Cairo Road, Lusaka as

aforesaid. 3. That I am a Zambian national (or a Zambian by nationality). 4. That I am an accountant by profession, employed by Zambia

Breweries.

(c) The affidavit must be written in the first person i.e. “I” and in consecutively numbered paragraphs.

(d)Alterations, erasures etc. must be attested by the commissioner for oaths. For example: I am a Zambian by nationality

(e)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!!]

(f) Deponent can mark with his thumb. The commissioner must witness.

(g)Jurat format – the jurat must not be on a separate sheet If the last paragraph of the affidavit is at the end of the page push it to the next so that the jurat appears under it. The jurat must state where and when it was sworn or affirmed. If sworn outside Zambia it must be sworn before a Notary Public (i.e. a lawyer of over ten years who, in Zambia applies to the High Court to be a Notary Public and is

9 OATH in capitals. Can say AFFIRMED is deponent on religious grounds refused to swear.

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appointed as such by the High Court). And not just a Commissioner for Oaths. E.g.

SWORN/AFFIRMED by PETER BWALYAAt Pretoria this 6th day of June 2006

Before me:__________________Notary Public

A notary public has a “seal” and the affidavit is sealed with this seal.

Sub rule 21 - Objections to Evidence

If it becomes necessary that some evidence should not be allowed to go on record, if you are the objecting party, you must make your objection as soon as you realize that the witness is giving testimony that you feel should not be admitted. You must rise and make your objection and must state the reason for your objection. You should not wait for the witness to give his testimony and then object. Before the court gives its ruling on the objection, it will accord the other party the chance to respond to the objection and it must also give reasons if it thinks that the evidence should be admitted. The court will then make a ruling sustaining or rejecting the evidence. As the court is a court of record, the ruling should not just be oral but must be written down in the record and may be the subject of an appeal in the High Court. If you fail to raise an objection and the evidence goes on record, it is still possible to challenge the evidence on appeal. This is done by indicating in your grounds of appeal why evidence should not have been admitted. Besides oral evidence, you can object to any document that the other side wishes to tender as evidence.

Reasons for objecting to documentary evidence: if it is a copy. Documents should be original. If the original is not available e.g. lost, destroyed etc. the party relying on the copy should tender an explanation as to why they are not 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.

Manner of Taking Evidence

(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.

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(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.

If the evidence is by affidavit/statement, you can ask the court for an adjournment to allow the witness to come to court to be cross-examined, but this may not be possible or practical.

Order VI Form and Commencement of Suits

Sub rule 1 - Every suit shall be commenced by a writ of summons unless otherwise provided by law.

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.

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.

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The writ must indicate what the plaintiff is claiming:

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.

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:

James Lungu First PlaintiffPatrick Tembo Second Plaintiff AndTitus Mwala First Defendant Jack Zimba Second Defendant

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).

A writ of summons is for unliquidated damages e.g. for defamation. It is NOT submitted with an affidavit in support nor a Statement of Claim. You just endorse what the plaintiff is claiming for in the space provided. If the claim is not clear and unambiguous, the defendant may apply to set aside the writ for want of a cause of action. In fact, in formulating a claim, drafting the claim is the most difficult part. A very good and concise summary is required - get precedents from e.g. Odgers.

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Page Two of the Writ: Notice to Defendant

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, 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.

If the defendant admits the claim, he must fill in Form A (CONSENT TO JUDGMENT) again with 2 or 3 copies. This is then filed, uplifted and served on the plaintiff or his advocates. If money is involved, the defendant must also fill in the top half of the second page of the writ – which allows him to pay immediately, delay payment but then also incur court and solicitor’s costs or to apply to pay in instalments. 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.

1. That the plaintiff is and was at all material times a …..2. That…..3. That …..4. That…..5. That the defendant is truly and justly indebted to the plaintiff in

the sum of Twenty Million Kwacha (K 20,000,000) same being the value of spare parts supplied to the defendant on 1st December 2004 by the plaintiff.

6. That I verily believe that the defendant has no defence to the plaintiff’s claim.

7. That the facts deposed……

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

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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.

Page Two of the Default Writ

If the defendant admits the claim but wants to pay in instalments, he must answer the questions at the top of page two. I.e. his occupation, income from all sources, number of dependants if a company number of employees), rent or mortgage payments per month, any other regular monthly payments e.g. utilities, school fees, transport etc. These answers will be used by the court to decide whether to allow payment by instalments. The defendant must propose the value of the instalments per month.

If the defendant has a counterclaim he must fill in the appropriate section.If the defendant disputes the claim he must fill in the appropriate section.

If the debt is not disputed the plaintiff must file a summons for Judgment on Admission I.e. Heading

SUMMONS FOR JUDGMENT ON ADMISSION PURSUANT TO ORDER….OF THE SUBORDINATE COURT RULES10

LET ALL PARTIES concerned attend before the Hon. Magistrate in chambers on the day of 2008, hours,noon, on the hearing of an application n the part of the plaintiff for

judgment in admission with costs.

This summons was drafted by ABC AdvocatesLottie HouseCairo RoadLUSAKAAdvocates for the

plaintiff10 The “Pursuant ……” only appears on a summons not an affidavit.

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The summons must be supported by an affidavit. i.e. _____________________________________________________________________AFFIDAVIT IN SUPPORT OF A SUMMONS FOR JUDGMENT ON ADMISSION_____________________________________________________________________

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:

SUMMONS TO SETTLE THE JUDGMENT DEBT BY INSTALMENTS11

LET ALL PARTIES concerned attend before the Hon. Magistrate in chambers on the day of 2006, hours, noon, on the hearing of an application on the part of the defendant for leave to liquidate the judgment sum in monthly instalments.

This summons was drafted by:

XYZ Advocates9th Floor, Premium House,LUSAKAAdvocates 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 11 Or: SUMMONS FOR LEAVE (or FOR AN ORDER) TO LIQUIDATE THE JUDGMENT DEBT (or SUM) IN MONTHLY INSTALMENTS

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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:

1. An ex parte summons - to get a temporary order of stay or2. An inte parte summons - to get a “permanent” order to stay3. An affidavit in support of either of the above two4. A certificate of urgency

ORDER 7 - Service of Process

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

In case the defendant is an individual and the document is a writ or default writ of summons, the documents must be personally handed to the defendant who must acknowledge service by appending signature to the file copy of the document. If personal service on the defendant is not possible, it is permissible to leave the document with any other person who resides with the defendant. The person so receiving must also acknowledge service by engrossing the file copy. If the defendant refuses to accept service, throw the documents at his feet and in an affidavit state that this happened. If the defendant is a Limited Liability Co. service should be at the registered office or principal lace of business - details can be found at the Company Registry. [Note e.g. if serving on ZANACO you cannot serve at any branch.] Service on a partnership is effected by service on any one of the partners (r.9). Service on a prisoner or one in an asylum – service is on the O-i-C. (r.10). Time of service - between 6 and 18 hours, Monday to Saturday but not on a Sunday, Good Friday or Xmas Day.

Substituted Service

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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:

(a)Advertising in a Newspaper that is in circulation in the area where the defendant is living or working. You need to draft a summary of the case – Times of Zambia calls it a legal notice - notifying the defendant that he has a case at court and give a brief summary of the case against him. Note: you cannot advertise on the TV or radio. No special provision for substituted service by advert in a paper on a blind person.

(b)Registered Post/DHL/UPS - only possible if the P.O. Box of the defendant is known. The letter must be clearly marked “registered mail”. You should obtain a receipt from the PO indicating that you delivered a registered letter to the PO for delivery to the defendant. You can also serve by DHL or UPS and in the summons you should indicate that you intend to serve by DHL or UPS. I.e. ….. on the hearing of an application on the part of the plaintiff for leave to serve 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.

ORDER 8 Parties

When obtaining instructions find out from the client in what capacity he is giving you the instructions.

Examples:

A Personal Representative

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Joke Tembo (suing12 in his capacity as the administrator Plaintiffof the estate of the late Peter Banda )

A firm

Peter Mainza (trading as Mainza and Co.) Plaintiff

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

A Trade UnionJohn Tembo (suing as a trustee Plaintiff For XYZ Union)

Group ActionJohn Zulu and 99 other Plaintiffs

(Note: attach a separate list disclosing the names of the other 99 plaintiffs)

Joinder of PartiesAfter 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.

Interlocutory ProceedingsThese are proceedings incidental to the settlement of the principle dispute between the parties and most are made between the commencement of the action and the judgment. The most common interlocutory proceedings are:

[A] Summons for Enlargement of Time [O.2 r.2 SCR]

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 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.

12 or sued if he is the defendant.

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[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.][C] Summons for Leave to Serve Writ by Way of Substituted Service [O.7 r.5]This summons is required to enable you to get an Order to enable you to serve the defendant by advert or registered post. The application must be supported by an affidavit in which the grounds for the application (e.g. you do not know the physical address of the defendant despite all your efforts) are set out. [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.[E] Summons to Join a Person who is not a Party to the Proceedings [O.8 r.5]Done to make another party either a co-plaintiff or co-defendant. Also under O.8 r.5 you can apply to strike out a party who has been wrongly joined to the proceedings. When commencing an action the plaintiff should be very sure that he has a cause of action against the defendant. However, if the defendant 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.[F] Guardian for Purposes of Suit [O.10 SCR]If, after commencing an action, the plaintiff discovers that the defendant is a minor or “patient”, the plaintiff must find a person who can act as the guardian ad litem for the minor or patient and apply for them to be recognized as such by the court and to act on behalf of the minor or patient in the action. [G] Summons to Alter a Party to the Proceedings [O.11 r.1 SCR]

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If, after instituting a suit, there is any change in the interest or liability, or either party dies, counsel can apply to court to change the party to the suit. E.g. if the defendant dies, the plaintiff can bring in the “legal representative” i.e. administrator or executor of the defendant to defend the case on behalf of the estate. If plaintiff dies, his legal representative can prosecute the case on behalf of the deceased’s estate e.g. to recover a debt owed to the estate. The only problem if the plaintiff or defendant dies is that the legal representative may not be in a possession of the evidence pertaining to the claim. He may only have hearsay evidence. Thus, although the law provides for alteration of parties, it is often difficult to prove or defend a case by relying on the legal representative. [See O.11 r.2 - except defamation. The debtor still owes the creditor even if he dies i.e. debt survives the death].[H] Third Party Proceedings [O. 12 SCR]After commencement, the defendant may want to contend that a third party needs to contribute of indemnify him against his liability under the action. Here, the onus is on the defendant (it is not the task of the plaintiff to do so) to join the third party to the action via Third Party proceedings (instituted by Notice - see below) in order for him to obtain that contribution or indemnity. The defendant t must demonstrate that he has a claim against the third party e.g. where he is sued for causing a road accident and he attributes that accident, in part or fully, to a third party. He can apply via Third Party proceedings to have the third party made a defendant in the action if he believes the party is (partially or fully) responsible for the damages claimed, so that he should contribute or indemnify the defendant for the damages due to the plaintiff. .

IN THE SUBORDINATE COURT OF THE 2006/SSP/0001FIRST CLASS FOR THE LUSAKA DISTRICTHOLDEN AT LUSAKA

BETWEEN PETER BWALYA PLAINTIFF

ANDFRED BANDA DEFENDANT JOHN ZULU THIRD PARTY

THIRD PARTY NOTICE PURSUANT TO O.12 OF SCR TAKE NOTICE that this action has been brought by the plaintiff against the defendant for payment of K 20 m being damages arising from a road traffic accident that occurred on 3 rd October 2006 and that the defendant claims against you:

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(a)That he is entitled to contribution from you to the extent of K 10 m. (b)….(c) …. [SEE Form 66 Schedule 1 SCR]

The grounds of the Plaintiff’s claim are:

That you caused the said accident.

AND TAKE NOTICE that if you dispute the plaintiff’s claim against the defendant or the defendant’s claim against you, you must within five days after service of this notice upon you inclusive of the day of service, deliver to the clerk of the court, by post or otherwise, a defense together with a copy thereof, and appear on the day fixed for the hearing of the action when the plaintiff’s claim against the defendant and the defendant’s claim against you will be heard and determined.

In default of your appearing on the day of hearing, you will be deemed to admit:

(a)the plaintiff’s claim against you (sic) the defendant; and(b)The defendant’s claim against you; and(c) Your liability to contribute to the extent claimed or indemnify the

defendant; and(d)The defendant’s right to the relief or remedy claimed in paragraph

© above; and (e)The validity of any judgment in the action

And you will be bound by the judgment in the action which may be enforced by execution against your goods.

[I] Summons to Amend Proceedings [O.15 r.1 SCR] The order is very wide and amendment can be done by the court on its own motion or on application by a party. Almost everything can be amended. Thus the pleadings can be amended by changing the relief sought, a paragraph in the Statement of Claim or the Defence, correcting an error on the face of a document e.g. the misspelled name of a party. If the pleadings are not amended and the court proceeds to hear the case, the court is likely to render a judgment based on defective pleadings and it is the lawyer’s duty to correct such errors. Proper drafting is imperative. The proper way to amend is by way of Summons, but for simple amendments e.g. correcting spelling or errors that do not go to the root of the case, a viva voce application is fine. Note: If counsel notices errors after uplifting the pleadings but before service he can amend by writing

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“Amended without leave of the Court” in red at the top corner of the pleading in question and doing the amendment, also in red.]

[J] Summons for Arrest of an Absconding Debtor [0. 21 SCR, s. 10 Cap 77]The purpose is to prevent the defendant from evading justice. The power to arrest is conferred on to the court by s. 10 of the Debtor’s Act Cap 77.

“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 order that the defendant be arrested and be imprisoned on the grounds set out in the affidavit in support hereof.

This summons was drafted by XYZ Advocates9th Floor, Premium House,LUSAKAAdvocates for the Plaintiff

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The summons must be supported by an Affidavit i.e.

Affidavit in Support of an Ex Parte Summons For an Order for the Arrest of an Absconding Defendant/Debtor

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 order13 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 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.]

Section 10 has two provisos: (a)The court may release the defendant at any time on such terms as

may seem just and in any event no such defendant will be detained in custody AFTER the date of final judgment14.

(b)Any order made by a sub-ordinate court of the Second or Third Class shall be reported to the High Court which shall have full power, with or without argument, to reverse or vary such order. [It is thus advisable to make the application before a Class I court - does not have to report to the High Court.]

13 Order is addressed to the O-i-C of a police station. You may name the officer in the order if you wish14 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.

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[K] Summons for Interim Attachment of Property [O.22 SCR]The law on this summons is similar to that on the order to arrest an absconding debtor. Thus, as per O. 22, before an application can be made there must be a claim before court of not less than K 20 and there must be evidence that the defendant is about to sell property or part of it, or remove it out of Zambia with intent to obstruct or delay the execution of any judgment. The court will invite the defendant to show cause why the order for attachment of his property should not be made against him. The court may direct that the defendant provides further security that may be cash paid into court and in the event that the defendant is unable to do so, the court will direct that his property be attached pending trial of the dispute. The plaintiff is required to specify what property should be attached and the estimated value of the property must be disclosed.

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.

[L] Interim Injunctions O. 23 SCRUnder O 23 r. 1 an interim injunction to restrain a defendant from damaging or wasting property which is the subject of court proceeding pending trail can be applied for by way of an ex parte summons and supporting affidavit. An injunction is NOT an independent cause of action i.e. you cannot go to court and file an action for an injunction. Thus an injunction will not be granted in perpetuity and will cease when the main cause of action is determined at trail. It must be made in relation to a main claim or remedy/relief that a court is to determine at the main trail, but, before the trial commences there is property that the plaintiff believes that the defendant will damage/waste. If so he can apply by summons and supporting affidavit for an interim injunction. Subordinate court also has power under O.23 r.2 to order the sale of disputed perishable goods e.g. fruit. The plaintiff can get an order to get these

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goods sold and the receipts paid into court until the dispute is resolved. Under rule 4 the plaintiff can obtain an injunction to restrain a defendant from breaching an agreement or contract. Thus, e.g. if a landlord is about to breach a term of a tenancy agreement, the tenant can obtain an order restraining him from doing so. With the ex parte summons should be filed a supporting affidavit, a certificate of urgency, an inter parte summons and the order sought from the magistrate. [Note: the affidavit in support will also serve at the inter parte hearing held later.] The affidavit must state that the plaintiff is likely to suffer irreparable injury that cannot be atoned for by way of damages. If he can be 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. HeadingEx Parte Order for an Interim Injunction

UPON HEARING counsel for the plaintiff and UPON READING the affidavit in support of the application and the plaintiff by his counsel having undertaken to pay the defendant damages in the event that the court finds that the injunction ought not to have been granted:

IT IS HEREBY ORDERED that the defendant either by his servants or agents or by himself be restraned from evicting the plaintiff from House No. 123 Roma Lusaka until the hearing of the application inter parte15 on the day of 2006 at

hours.

Dated this day of 2013_____________________ Magistrate

This order was drawn by: MWP Chambers15 Injunction will not be permanently granted until affording the other side a chance to be heard.

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Lex HouseCairo Rd.LusakaAdvocates for the Plaintiff

To: The Defendant16 Mr. XYZHouse 123RomaLusaka

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.Exam TipsIf you are given a situation question, i.e a given a set of facts and asked to draft documents (refer to the interlocutory applications in the notes above). If these documents include an affidavit and it mentions an exhibit(s), you MUST also draft a Certificate of Exhibit(s). I.e.

IN THE SUBORDINATE COURT OF THE 2013/SSP/0001FIRST CLASS FOR THE LUSAKA DISTRICTHOLDEN AT LUSAKABETWEEN

PETER BWALYA PLAINTIFF 16 MUST be directed and served on the DEFENDANT personally and NOT his advocates otherwise the Penal Notice will not apply.

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ANDFRED BANDA DEFENDANT

CERTIFICATE OF EXHIBITS

These are the exhibits referred to in the affidavit of the said Peter Bwalya, marked “PB1” to “PB6”

Dated this day of 2013

Before me: _____________________________Commissioner for Oaths

Thomas Advocates 6th Floor, Premium HouseIndependence AvenueLUSAKAAdvocates for the Plaintiff

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 2817 of the Laws of Zambia. The caption will read:

Ex Parte Summons for an Order to Stay Execution of Judgment Pending Determination of a Summons for Leave to Liquidate the Judgment Debt in 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 JudgmentsUnder subordinate court procedures, there are several ways a judgment may be enforced. The mode of enforcement depends on the nature of the judgment made by the court18.

17 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.18 Note: after judgment is entered the plaintiff must give the defendant three days grace period before he can apply to enforce the judgment.

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1. Writ of Fieri Facias

If the judgment is for the recovery of money it can be enforced by a writ of Fieri Facias (Fifa) directed to the sheriff and his bailiffs and is executed by the seizure of the defendant’s movable assets, except beddings, clothes, pots and plates. The amount of movable assets seized will depend on the amount to be recovered. If it is e.g. K 5m, it would be unreasonable to seize goods worth K 10m.

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.

Auction sale is usually done by a government auctioneer and the proceeds of the sale are remitted to the plaintiff’s lawyers less the bailiff’s commission, which is 15% of the amount realized from the sale. Note: if the defendant pays within five days and before the advert is published, the commission is 2.5% of the amount owed plus interest, if he pays after the advert goes out but before the auction, the sheriff’s commission is 7.5% of the amount owed plus interest.

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

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.

A judgment summons is supported by an affidavit that discloses/attests that judgment was in favour of the plaintiff in the

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sum of K x amount and that execution of the judgment has failed as the defendant has no goods or property worth seizing.

The purpose of the judgment summons is to examine the defendant on oath as to his means, which is done by placing the judgment debtor in the witness box, and the plaintiff’s lawyer will cross-examine him as to his capacity to pay the judgment debt. E.g. from his monthly salary in installments, if he is employed.

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 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).

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.]

If the writ is against a dwelling house, the case will usually be:

(a) one where the landlord is trying to regain possession of his property from a tenant e.g. who has defaulted on paying rent; or (b) where, in a conveyance of the property, the purchaser has paid the full purchase price but the vendor is refusing to give up vacant possession; or

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(c) a bank or other mortgagee is trying to obtain possession in a mortgage action when the mortgagor of the property defaults on paying the amount due to the bank (commenced by an Originating Summons under O. 30 of the HCR in the High Court as the value is invariably above K 30m). In this latter example, the bank will not just take possession but will also proceed to sell the property (a mortgage action is about recovery and sale of land) in order to get back the money owed to it by the mortgagor. The bank will not use the Sheriff to sell, but will advertise in the press for interested parties to bid. There are several SCZ rulings stating that the bank is obliged to sell at the “best price” and as if the property was its own. Thus if the mortgagor owes K 90m and the bank has bids of K 90m, K 120m and K 150 m, the bank is obliged to accept the K 150m and pay the K 60m surplus to the mortgagor.

5. Writ of Delivery This is not very common. It empowers the Sheriff to deliver movable

property from A to B. The judgment must specifically state that the defendant must

surrender a particular item to the plaintiff. If so, the plaintiff can use a writ of delivery to enforce this judgment.

6. Charging Order 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.

A charging order can also be used in relation to shares held by a defendant in a company.

7. Garnishee Order Three parties, the plaintiff, defendant and a third party who owes or

holds money for the defendant. 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.

A garnishee order nisi is applied for by way of summons to show cause why a garnishee order absolute should not be issued. [E.g. the bank may say that the defendant’s account is in the red or has been closed.] If the bank confirms that the defendant holds an account that has sufficient funds, the court will make the garnishee

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order absolute. The bank will than pay to the plaintiff the amount of the order.

The defendant has no role to play in these proceedings. He is not allowed to swear any affidavit that he has no funds in the bank - no collusion between the bank and the defendant is allowed.

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 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.

However, you can recover the money by citing the Secretary to the Treasury for contempt. He may be thrown into prison until the debt is paid as the Government budget under the line item “Compensation and Awards” is supposed to budget for these judgments made against Government.

Office of the Sheriff See Cap 37 of the Laws of Zambia The Sheriff of Zambia is a civil servant who is appointed by the Judicial Service Commission. Below the Sheriff is the Deputy Sheriff - also a civil servant and both are based in Lusaka. At district level there are under-sheriffs, below who are the court bailiffs. The main duties of the Sheriff of Zambia and his officers are:

(a)to assist courts enforce their judgments; and(b) To serve court documents e.g. writs of summons (but not

documents served for interlocutory applications e.g. an interpleader or summons to set aside).

PART III: CRIMINAL PROCEDURE

1. JURISDICTION OF THE COURTS

A. The courts (Criminal Jurisdiction)their functions, Jurisdiction and Power

B. The term jurisdiction refers to the authority of a court to:

Accept one to present a case before it To decide on maters presented before it

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and in Zambia it is set out in the legislation establishing the court; MIYANDA V THE HIGH COURT 1984 ZR 62

Section 5 Penal Code cap 87- courts jurisdiction extends to every place in Zambia

Section 6 Penal Code - also have extraterritorial jurisdiction where:

Subsection(1) A Zambian does something which is a crime in Zambia - NGATI AND OTHERS V THE PEOPLE 2003 ZR 100

Subsection(2) nationals who partly commit the offence in Zambia - THE PEOPLE V ROXBURGH 1972 ZR 31

LIPIMILE AND ANOTHER v MPULUNGU HABOUR MANAGEMENT 2008 ZR 252

Subsection(3) cannot be tried if convicted or acquitted

Section 14 PC– criminal responsibility; Below 8 years old (absolute), Between 8 and 12 years responsible if shown that he

knew that he ought not to do the act or make the omission

Person under the age of 12 years presumed to be incapable of having carnal knowledge

Section 20 PC-person not to be prosecuted twice except where death occurs

C. Three main courts Established by provisions of constitution and acts of parliament The Subordinate Court- chapter 28 The High Court-chapter 27 The Supreme Court-chapter 25 Some criminal cases

o in local courts and o courts martial -chapter 106:defence act

D. SUBORDINATE COURTS Set out by Article 91(1)(d) of Constitution

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Established by the Subordinate Courts Act Chapter 28 Established by section 3- There shall be and are hereby constituted courts subordinate to

the High Court in each District as follows:- Subordinate Court of the first class to be

presided over by a principal resident magistrate, a senior resident magistrate, resident magistrate or a magistrate of the first class;

- Subordinate Court of the second class to be presided over by a magistrate of the second class;

- Subordinate Court of the third class to be presided over by a magistrate of the third class.

Section 7 Subordinate Courts Act-magistrates equal power, authority and jurisdiction,

Section 7 of the CPC providing for sentence as follows;Subject to the other provisions of this Code, a subordinate court of the first, second or third class may try any offence under the Penal Code or any other written law, and may pass any sentence or make any other order authorised by the Penal Code or any other written law:

o a senior resident magistrate shall not impose any sentence of imprisonment exceeding a term of nine years;

o resident magistrate shall not impose any sentence of imprisonment exceeding a term of seven years;

o magistrate of the first class shall not impose any sentence of imprisonment exceeding a term of five years;

o Magistrate of the second and third class, shall not impose any sentence of imprisonment exceeding a term of three years.

Section 9 CPC –sentences requiring confirmation by High Courto first class (other than a Senior Resident Magistrate or a

Resident Magistrate) exceeding two years' imprisonment with or without hard labour shall be carried into effect in respect of the excess and a fine exceeding three thousand penalty units, or imprisonment in default thereof,( can levy without confirmation by the High Court; but such court shall immediately transmit)

o No sentence imposed by a subordinate court of the second class, exceeding one year's imprisonment with or without

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hard labour and a fine exceeding one thousand and five hundred penalty units, or imprisonment in default thereof,

o No sentence imposed by a subordinate court of the third class, exceeding six months' imprisonment with or without hard labour, shall be carried into effect in respect of the excess, and no fine exceeding seven hundred and fifty penalty units

o Section 15(2) CHOMBA V THE PEOPLE (1975) ZR 245Where the aggregate of consecutive sentences imposed is above the limit a case must be sent for confirmation of sentence as it is treated as one sentence

o In practice the state waits until appeal period expires before submitting case for confirmation.

Section 217 CPC – committal for sentencing

Section 19 subject to CPC or other legislation in exercise of criminal jurisdiction

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

Section 6 two or more presided over by different magistrates Section 69 general rule where offence committed

section 66- where apprehended in another district section 70 where act done or where consequences

felt section 71 where connected with another offence in

another jurisdiction section 72 where district is uncertain section 73- where near boundary section 75- where doubt

Section 11 CPC- chief Justice by statutory order specify cases tried by HC or SRM

Section 12- practice and procedure in CPC or as set out in other Act

Can transfer to other subordinate court

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Section 13-Can transfer to local court

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 acto 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 serviceo Section 73 can be charged with civil offence in addition to

offences under the Act But cannot be tried for offences like treason, murder,

manslaughter, treason-felony, rape and section 8 of the Suicide Act when committed in Zambia

F. HIGH COURTS Established by section 3 of the High Court Act chapter 27 Established by Article 94 of the Constitution-

There shall be a High Court for the Republic which shall have, except as to the proceedings in which the Industrial Relations Court has exclusive jurisdiction under the Industrial and Labour Relations Act, unlimited and original jurisdiction to hear and determine any civil or criminal proceedings under any law and such jurisdiction and powers as may be conferred on it by this Constitution or any other law.

ZAMBIA NATIONAL HOLDINGS LIMITED AND UNIP V ATTORNEY GENERAL 1994 ZR 22- unlike Industrial Relations Court and Subordinate and local Courts with limits in penalties and geographical limit, unlimited but not limitless

Section 11 CPC-sets out cases triable by High Court

The High Court shall be divided into such divisions as may be determined by an Act of Parliament.

Article 94(3) The Chief Justice shall be an ex-officio judge of the High Court.

Article 94(4)The other judges of the High Court shall be such number of puisne judges as may be

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prescribed by an Act of Parliament. (Supreme Court And High Court (Number Of Judges) Act- Chapter 26 – 30 Judges)

The High Court shall be a superior court of record and, except as otherwise provided by Parliament, shall have the powers of such a court.

Article 94(7) The High Court shall have jurisdiction to supervise any civil or criminal proceedings before any subordinate court or any court-martial and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of ensuring that justice is duly administered by any such court.

o Part XI CPC-appeals, revision and case statedo Section 136 of Defence Act cap 106- appeal to court of

appeal which is supreme courto Section 80 of CPC High Court has power to change

venue of hearing before Subordinate Court where:

Fair and impartial trial cannot be had in any subordinate court

Question of law of unusual difficulty likely to arise Need to view scene of crime for satisfactory trial Where will be convenient to parties and witnesses Expedient to the ends of justice May order;

Other court to try or One of higher jurisdiction Accused person be committed for trial before

itself Every application by motion and affidavit, except by

DPP Must give DPP notice

The Chief Justice may make rules with respect to the practice and procedure of the High Court in relation to the jurisdiction and power

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

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o MUNDIA SIKATANA V THE ATTORNEY GENERAL 1982 ZR 109-a High Court Judge cannot adjudicate on a matter in civil case that has been dealt with in a criminal case.

Section 6 CPC may pass any sentence authorized by law Section 9 of the HC Act, HC is a superior court of record Section 10 High Court Act, practice and procedure as set out in

CPC in default that by High Court of Justice in England-RAHIM CASE

Section 19 High Court Act, sits in sessions by the Chief Justice’s statutory order-currently Lusaka, Ndola, Livingstone, Kitwe, Kabwe, Mongu, Chipata, Mansa, Kasama and Solwezi.

Section 22 can transfer cases Section 23 and 24- transfer to other judge, Subordinate and Local

Courts Appeals from the Subordinate Courts

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.

The judges of the Supreme Court shall be- (a)the Chief Justice; (b)the Deputy Chief Justice; (c)seven Supreme Court judges or such greater

number as may be prescribed by an Act of Parliament.-Cap 26 -11

The Supreme Court shall be superior court of record, and, except as otherwise provided by Parliament, shall have all the powers of such a court.

When the Supreme Court is determining any matter, other than an interlocutory matter, it shall be composed of an uneven number of judges not being less than three except as provided for under Article 41.

The Chief Justice may make rules with respect to the practice and procedure of the Supreme Court in

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relation to jurisdiction and powers of the Supreme Court.

Section 3 -composition uneven number but not less for matters other than interlocutory

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

Person convicted by HC can appeal on point of fact or law

DPP excess in jurisdiction on point of law No appeal on sentence fixed by law

Section 14 Cap25 second appeals Any party to an appeal to the High Court may appeal to the Court against the High Court judgment with the leave of that court if given at the time when judgment is pronounced, or with the leave of the Court.

Section 8 Cap 25 -practice and procedure in act or rules in default Court of Criminal Appeal in England

2. PUBLIC PROSECUTIONS: POWERS AND DUTIES OF THE DIRECTOR OF PUBLIC PROSECUTION:

Established by Article 56 of the Constitution . appointed by the President subject to ratification by the National

Assembly Qualified to be appointed to the appointment of a Judge of the

High Court with experience biased towards criminal law.

DPP has power in any case which he considers it desirable to -

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

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Section143 of the Defence Act Cap 106- Attorney General handles cases where one convicted by courts Martial appeals

o to take over and continue criminal proceedings that may have been instituted or undertaken by any person or authority; and

o to discontinue, at any stage before judgment is delivered, any criminal proceedings instituted or undertaken by himself or any other person or authority.

Section 81 CPC-nolle prosequi; either filling in court or stating(subsection 1) or under subsection 2 filling before the registrar or clerkCase: DIRECTOR OF PUBLIC PROSECUTIONS v MBAYO MUTWALA AUGUSTINO (1977) Z.R. 287 (S.C.)

Section 88 CPC-withdrawal before the subordinate court consent of the court or on the instruction of the DPP- if after defence will result in acquittal

powers may be exercised by him in person or by such public officer or class of public officers in accordance with general or special instructions:

o section 82 delegation to Solicitor General and State Advocates- power to enter nolle –section 81 and committal proceedings(summary committal ss 253-259 and proceedings after committal 241-247)

o Section 86 CPC appoint public prosecutors who exercise delegated powers see section

Section 87 CPC-powers of the public prosecutor; to appear and plead without any written authority in a public prosecution or were private person instructs a lawyer, public prosecutor may conduct and lawyer operates under him

not subject to the direction or control of any other person or authority except Attorney General for general consideration of public policy,

also by a legal practitioner. powers to take over and discontinue exclusive

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DPP has discretion to prosecute not bound by coroner or police findings-KAMBARANGE MPUNDU KAUNDA v THE PEOPLE (1990 - 1992) Z.R. 215 (S.C.)

in some cases law requires that consent of DPPo Penal Code Cap 87

wrongfully inducing a boycott- section 92 seditious practices section 57- section 58 requires

consent expressing hatred, ridicule or contempt for persons

due to race, tribe and place of origin-section 70 proposing violence or breaches of law to assemblies-

section 91 defaming a dead person section 192 incest- under sections 159 and 161 required by

section 164 abuse of authority of office –section 99(2) possession of offensive weapon or material-section

85(3) obscene material-section 177(5)

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 46o State Security Act cap 111-section 14o Preservation of Public Security Act cap 112-secion 12o 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

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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 33o Section 11-unauthorised activities cap 469 The

Telecommunications Acto Chiefs Act cap 287- section 13

Section 32 of Societies Act consent by DPP or delegate of Dpp; Solicitor General or state advocate

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

3. ARREST

Section 18 CPC must touch and confine Elements of an arrest-SILUNGWE v THE PEOPLE (1974) ZR

130-o Physical restraint (actual or conduct suggesting force will

be used to prevent departure) ando Inform suspect that is arrested

Does not necessarily mean will be followed with the arrest charging of a person

However must be exercised for the right reasons Not right when there is no intention to charge Justified by the breach of the law

There must be reasonable cause-o That has committed offenceo Is committing an offence oro Is about to commit an offence-

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o IN RE SIULUTA 1979 ZR 14- a person must not be arrested for the purpose of facilitating investigations

Reasonable cause is dependant on facts known by the officer at the time

Reasonable existence of factso LAURENT v WILLIAMS (1963-1964) Z AND NRLR 4-

arrest not illegal where no warrant as long as has reasonable cause to believe that offence committed

Test- reasonable man acting without passion or prejudice would fairly have suspected one to be committing an offence

Standard lower than evidence to establish a prima facie caseo DANIEL CHIZOKA MBANDANGOMA v THE ATTORNEY

GENERAL (1979) ZR 45- sufficient to show that arresting officer has reasonable suspicion that person has committed offence

Can rely on hearsay evidence Must communicate reasons either;

o At time of arrest or when reasonably practicable-o ATTORNEY GENERAL v SAM AMOS MUMBA 1984 ZR

14- must inform of reasons unless impeded by suspect and failure to inform amounts to false imprisonment

o No precise language Can use force where;

o There is resistance to arresto To prevent escape from arresto 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 escapeo Prevent injury to oneself

Can also enter premises where suspect was immediately before arrest without warrant

Person must be taken to police as soon as possible after arrest Section 22 CPC –power to search on arrest and take away

property except necessary apparel Section 24 CPC search of a woman

ARREST WITHOUT WARRANT

Section 26 CPC – Police officers may arrest without warrant for listed offences and cognizable offences

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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

o M.MUTEMWA V ATTORNEY GENERAL (1979) ZR 251-person arrested without warrant must be taken to court within 24 hrs or released on bail if offence not punishable with death

.Section 35 and 36 CPC – arrest by magistrate

o Section 35 only in cases where offence committed in presence of magistrate

o Section 36 will only direct where offence is committed in presence of magistrate

ARREST ON WARRANT Section 90 CPC- allows one to institute proceedings by lodging a

complaint THE PEOPLE v MWEEMBA (1972) ZR 292

o Criminal proceedings can only be instituted by making a complaint or bringing to court person arrested without warrant

o Warrant only issued after charge drawn up Section 91(1) – proviso warrant will only be issued where

complaint is on oath PAUL JEREMIAH LUNGU v THE PEOPLE (1978) ZR 298- only

advocate can prosecute on behalf of complainant THE PEOPLE v MUTACHILA (1976) ZR 96-A person can be

arrested for additional offences

SEARCH WARRANTS Section 119 CPC- proved on oath that suspects that evidence

proving commission of offence can be collected LISWANISO v THE PEOPLE (1976) ZR 277- also that evidence

will become available

4. REMAND, BAIL, POWER IN PARTICULAR CASES.

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The release from custody of an accused or convicted person, who undertakes to subsequently surrender to custody

Bail is taking sureties by an authorities person for the appearance of the accused on a certain day at a certain lace

Surieties must be sufficient in that they must be able to answer for the same in which they are bonded

Amount of bail lies within he discretion f examining justice Court when granting bail may include conditions it

considers likely for the appearance of the accused

Bail can therefore be granted in the following;o Police bondo Bail pending trial o Bail pending appeal ando Constitutional bail.

Section 33(1) CPC– allows the detention of persons arrested without a warrant for a reasonable time

o Officer in charge must release if cannot present to court within 24hrs

o Only offences not punishable by deatho And offences of a serious natureo Release on bond with or without suretieso IN RE SIULUTA AND THREE OTHERS (1979) ZR

14Section 33 must be complied with when evidence has been collected

Section 123 CPC Treason, Murder offences carrying mandatory

capital penalty Misprision of treason or treason felony Aggravated robbery Theft of motor vehicle and Espionage- where DPP places certificate

POLICE BOND

Granted by the officer-in-charge(section 33) To appear in court on specific date Must execute bond-section 126 With conditions like sureties or on own recognisance Not be granted where arrested on warrant unless there is

provision section 103 CPC

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THE PEOPLE v BENJAMIN SIKWITI CHITUNGU AND OTHERS 1990-1992 ZR 190

o Police can cancel it before court dateo Court can increase conditions-Section 127 CPC o Does not cease where one appears in court

Section 124 officer before whom bond is executed or the court d may demand additional conditions that are reasonable in a particular case

BAIL PENDING TRIAL Section 123(1)-apply before trial court Application ether by summons supported by affidavit or

viva voce Main test is the likelihood to attend court OLIVER JOHN IRWIN v THE PEOPLE 1993-1994 ZR 54-

factorso Nature of accusation and severity of punishmento Nature of evidenceo Independence of suretieso Prejudice to accused person o prejudice to state

Factors in general o Likelihood to attend trialo Likelihood to interfere with witnesseso Risk of committing other offenceso nature of chargeo evidence in support of a chargeo punishment for offenceo likelihood of repeating the offenceo likelihood of interfering with witnesseso in dependence and reliability of the suritieso Whether accused will surrender for trail

o Standard is that substantial grounds exist and that court

must be satisfied that will-factorso Nature and seriousness of offenceo Character and antecedents of offendero Previous conduct in relationship to bail and o Nature of evidence against one

Application is before the trial court

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Can renew application to the High Court(supervisory power) where denied by the Subordinate Court

THE PEOPLE v BENJAMIN SIKWITI CHITUNGU AND OTHERS 1990-1992 ZR 190

Where denied bail by police can under section 123(3) apply before High Court it is not an appeal- in practice only allowed when denied in the subordinate court.

Cannot appeal to the Supreme Court where denied by High Court-BUKASA PELU SEKELE v THE PEOPLE 1990-1992 ZR 5

Supreme Court will only entertain application if there is appeal pending before it

Section 124- court may demand additional conditions Section 126-High Court may reduce or vary conditions

imposed by Subordinate Court or police officer Section 137- court may demand additional if first

insufficient because of mistake or fraud Section 128- surety may apply to be discharged

BAIL PENDING CONFIRMATION OF SENTENCE

Section 13(1) CPC allows for bail pending the confirmation of sentence-under section 9

BAIL PENDING APPEAL

Section 332 CPC after lodging appeal Subordinate Court may grant bail

Section 336-CPCwhere one appeals or applies for leave to appeal High Court may grant bail

Section 22 Supreme Court Act where High Court refuses to Supreme Court may grant bail

Section 123(5)-MAYONDE v THE PEOPLE 1976 ZR 129-must lodge appeal

KAMBARANGE MPUNDU KAUNDA v THE PEOPLE 1990-1992 ZR 215-bail cannot be granted on appeal for cases to which section 123 CPC applies

STODDART v THE QUEEN (1)1954 NRLR 288

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o Can only be released if there are exceptional circumstances-

Likelihood that will have served sentence by the time appeal heard

The likely hood of success

CONSTITUTIONAL BAIL

Only made in High Court because Article 28(2) of Constitution ; High Court has jurisdiction where there has been, there is, there is likely to be a breach of Articles 11 to 26 alleged

Article 13(3) Constitution-person arrested or detained on court order or on suspicion of committing offence when not released shall be brought before court without delay if not released and if not tried within reasonable time be released on bail

Overrides provisions in CPC restricting bail CHENTANKUMAR SHANTAL PAREKH v THE PEOPLE ZR

1995-where unreasonable delay through no fault or stratagem of accused will be released

5. CHARGES AND INFORMATIONS Person arrested and charged with a criminal offence when

presented to court must take plea. Document setting out offence:

o Called charge in the Subordinate Courtso Called information in the High Courto Also referred to generally as an indictment

FRAMING OF CHARGES AND INFORMATIONS

Sections 134 to 137 CPC set out how both charge and information should be drawn

Section 134 CPC- both documents will have a-e o The commencemento Statement of offenceo Particulars of offence

THE COMMENCEMENT Contains information of-

o Which court trying62

o Where trial being heldSTATEMENT OF OFFENCE

Section 137(a)(i) nature of the offence, example murder

Section 137(a)(ii) section or sections creating the offence

JOSEPH NKOLE v THE PEOPLE 1977 ZR 351o Reference to wrong section when particulars are correct

makes charge defective but not bado Does the accused person suffer any prejudice

PARTICULARS OF OFFENCE

Section 137(a)(iv)-Examples of format in Second Schedule CPC

Immediately after the statement of offence Contents; Names of accused person(s)

o Error in name does not affect the validity of the chargeo Where name not known can be described as “a person

unknown”-section 137(d)o Also “alias....”

Date of offence; State in so far as it is known Practice- day, month and year

o Where date not known “On or about the …..” “On a date unknown but between the…. And

the…..”o Can be crucial in certain cases

Legislation may have not come into force defilement cases-victim may have turned 16

o Must be on single date but for continuing offences can be on several dates

In non compliance cases- “ on and since the…..” and

Conspiracy cases- “on divers dates between the…..”

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Time not necessary but essential in some cases like burglary

o Section 301- burglary is house breaking during the day time

o Section 42 of the Liquor Licensing Act Cap 167 prohibits sale of alcohol during permitted hours; section7(2) bar can only sale between 10 in morning and half past 10

Place where offence committed Practice town, district, province and country CDDD- road essential-section161 of Road Traffic

Act offence must be committed on public road Section 42 of Liquor Licensing Act prohibits

holder of restricted licence from having sprits on premises without reasonable excuse; section 16 holder cannot have spirits

Role of parties not indicated as accomplices or principles or aiding or abetting

o Section 21-counsel, procure, aid, abate or omits to do for the purpose of enabling

Intent section137(g) not necessary to state intent to defraud, deceive or injure unless s ingredient of offence

Age of victim unless is an ingredient of offence o defilement

RULE AGAINST DUPLICITY

o SHAMWANA AND SEVEN OTHERS v THE PEOPLE 1985 ZR 41

Duplicity matter of form and not evidence Section 52 of the penal Code allows offences

under chapter 12 to be proved by overt actso THE PEOPLE v MAKHOKHA 1967 ZR 173

Two sections creating separate offences in statement of offence

Burglary and theft exception Conspiracy and attempt different

o NSAMA AND OTHERS v THE PEOPLE 1976 ZR 171 Should not charge with conspiracy where one

charged with actual offenceo each count must contain only one offence

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o if it alleges more than one then it is bad for duplicity

o bad for duplicity where more than one offence more than one date more than one item stolen more than one victim

o where the is duplicity one can apply to quash but courts will not where it can be amended

JOINDER OF COUNTS

section 135 CPCo in some cases lawful to join two more counts against

one accused person in a single information or charge sheet

o this the case where charges founded on the same facts they form a series of offences are offences of a similar character

Section 135(2)-a statement is set out in a count where more than one offence is charged

o FLUCKSON MWANDILA v THE PEOPLE (1979) ZR 174

o Where more than one count they shall be marked consecutively

Section 135(3)- can apply to be tried separately if accused person will be embarrassed

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

JOINDER OF ACCUSED PERSONS section 136 CPC

o this may either be by naming two accused persons in one count or accused persons individually in separate counts

o words “jointly and whist acting together”

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o these are persons who commit the same offence in same

circumstances persons who commit the offence and those who

abate different offence in course of same transaction theft related offences chapter XXVI to XXX of

penal Code counterfeiting offences chapter XXXVII of Penal

Code

OBJECTIONS TO A CHARGE OR INFORMATION (INDICTMENT)

indictment preferred in breach in breach of sections 134, 135, 136 and 137 CPC

where there are time limits for preferring chargeso Section 219 CPC-offences with maximum punishment

of six months and or fine not exceeding one thousand five hundred penalty units in the subordinate court must be charged within 12 months.

charge not known by the law court has no jurisdiction

o section 11 CPC- cases triable in High Courto section 85(1) CPC-where consent not obtainedo section 138 CPC- where already convicted or acquitted

section140 not where consequences are unknown

Penal Code- allows for murder charge even after prosecution for assault

section 141 CPC where acquitting is not competent courtTHE PEOPLE VS PETROL ZAMBWELA 2002 ZR 45-subordinate court has no power to acquit when conducting PI

o charges a person immune from prosecution Articles 43(2) and (3) Constitution person

holding or a person who held office of President Section 14 Penal code –immature age Diplomatic Immunities and Privileges Act

cap20Section 3 make article 31 of the Vienna Convention on Diplomatic Relations applicable

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to Zambia. – Immunity from criminal jurisdiction of receiving state

o Where objections court can Quash or amend

QUASHING A CHARGE OR INFORMATION (INDICTMENT) section 274 CPC only where charge or information does not

disclose offence punishable by the law and cannot be amended to state offence

convicted or acquitted immune

AMENDMENT OF A CHARGE OR INFORMATION (INDICTMENT)

section 273 CPC Information section 213 CPC Subordinate Court at any stage before

accused is required to make defence court can upgrade, substitute or include new count KAMBARANGE MPUNDU KAUNDA v THE PEOPLE 1990-

1992 ZR 215o Court, prosecution or defence can apply to amendo Nature of amendment and when

SHAMWANA AND OTHERS v THE PEOPLE 1985 ZR 41o Amend in line with evidenceo No injustice if given opportunity to recall witnesses

purpose-o to correct a formal defect oro as a result of evidenceo dependant on-

timing of amendment and risk of injustice

procedure on amendmento JOHN BANDA v THE PEOPLE 1970 ZR 14

Where there is amendment plea should be retaken and right to recall witnesses explained

The effect of the omission of material particulars( where no objection or amendment during trial)

o ALAKAZAMU v THE PEOPLE 1973 ZR 31

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Charged with theft with another but the words “jointly and whilst acting together with other persons unknown”- lack of reference did not make particulars defective as is not ingredient of offence

o HARRISON ZIMBA v THE PEOPLE 1970 ZR 101Charged with attempted house breaking, omitted the words “with intent to commit a felony”- found to be material defect as particulars did not disclose offence

o MUTALE v THE PEOPLE 1973 ZR 15Espionage charge omitted the words “for purposes prejudicial to the safety or interests of the Republic”-indictment did not disclose an unknown offence but it described a known offence with incomplete particulars

OVERLOADING OF A CHARGE OR INFORMATION (INDICTMENT)

MULWANDA V THE PEOPLE 1976 ZR 133o Not fair for accused or court to charge with 37 counts,

call 87 witnesses and 89 exhibits

7. THE TRIAL PROCESS GENERALLY 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 address68

Charge read out: both statement and particulars of offence

Section 356 CPC In the case of a corporation appears by a representative

o THE 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 guiltyo Section 17 CPC accused medically examined-

MALITA BANDA v THE PEOPLE 1978 ZR 223-incapacity to make a defence under section 161(1) cannot result in special finding under section 167

where accused incapable of taking plea enter plea of not guilty

o MUSITINI v THE PEOPLE 1975 ZR 53-plea of not guilty where mute of malice or visitation of God

MBAYE v THE PEOPLE 1975 ZR 74- compliance mandatory whenever it arises under section 160 and court cannot send accused for treatment must proceed

THE PEOPLE v NJOVU 1974 ZR 60-deaf mute must be represented.

THE PEOPLE v BANDA 1972 ZR 307 and THE PEOPLE v MWABA 1973 ZR 271-the question of insanity can arise even in cases where one is capable of making a defence

STEWART v THE PEOPLE 1973If case requires consent of DPP certificate presented to court or case adjourned for presentation of certificate

Where more than one each and every one must respond to each count

Accused must personally plead not sufficient for counsel to indicate that his client intends to plead guilty

Court records plea of guilty or not guilty Where represented lawyer indicates whether it is

according to instructions

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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

o Section 5- sets out the prosecutors obligations are to

o withdraw or discontinue the original chargeo To accept the accused persons plea to

lesser chargeo Section 6 the prosecutor is also obliged to inform

the accused person of the right to legal representation and will only negotiate through the lawyer.

o section 9 when ever an agreement has been entered into the court must be informed in open court or in chambers were good cause exists

Accused invited to confirm particulars of offenceo SHAMPETA AND ANOTHER v THE PEOPLE

(1979) ZR 168for 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 facto includes medical reportso public analysts reporto ballistics reporto post-mortem report

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Section 7 Pre Negotiation Agreements Act the plea agreement Will be in writing and will contain the following information

o The original chargeo The new chargeo The statements of factso A statement that the accused had been

informed of his rightso The rights and obligations of the state and

the accused persons under the agreement o It will also be signed by public prosecutor,

the accused and his lawyer

statement of facts only on those where pleaded guilty

accused asked if facts true and correcto THE PEOPLE v JOHN KAPALU KANGUYA 1979

288a plea must not be equivocal. Each and every fact must be admitted. Admission of the facts will not validate equivocal or imperfect plea especially where not represented

confirms and /or indicates which ones not correct court considers whether disputed facts go to the root of

the admissiono if they do not court still records a plea of guiltyo may actually amend the facts to take care of the

disputed factso if goes to the root of the admission records a plea

of guiltyo 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 167facts must support the charge, where they do not prosecutor must clarify or amend or court enter plea of not guilty

71

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.

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 sentenceo 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,

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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 EXTRACTSo 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 16Evidence made available in a plea negotiation agreement cannot be used in any criminal or civil proceedings

o Section 17 an application can be made to seal records of a plea negotiations or agreement

o PLEA OF NOT GUILTY prosecutor calls first witness there may be object to competence of witnesses-section

151 CPC and section 128 of Juveniles Act cap 53- spouse being called as witness

other witnesses remain outsideo MWABA v THE PEOPLE 1969 ZR 61-

A witness will not be disqualified from testifying merely because they were in court during the testimony of other witnesses

witness sworn or affirmed-PHIRI V THE PEOPLE (1975) ZR 30- where witness is non believer can affirm

o if child of tender years voire direo Procedure in section 122 of the Juveniles Act

Summoning witnesses section 143 CPCo Section 144 CPC can issue warrant were ignores

or 145 CPC where has information that is unlikely to attend

witness led in evidenceo evidence in chiefo cross examined accused or defence

counsel( counsel cross examine in the order of the accused persons they represent in the absence of agreement)

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o SIKOTA v THE PEOPLE 1968 ZR 42Accused persons in the order that they appear cross examine

o re-examined on issues raised in cross examinationo 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 medicalo Section 191A document by medical officer can be

produced without the makero 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 featureso if author or person whose has had custody can

produce exhibit TRIAL WITHIN A TRIAL

To determine admissibility of confession statement Accused cannot elect to remain silent

o submission of no case to answer defence makes the first speech

NGOMA v THE PEOPLE (1972) ZR 42- court should not allow state to close its case and address the court before defence has submitted on case to answer

followed by prosecution defence reply

o RULING ON CASE TO ANSWER can find with case to answer

o same offenceo lesser offenceo different offence- invite or recall witness

court can acquito no case to answero THE PEOPLE V WINTER MAKOWELA AND

ANOTHER (1979) ZR 290

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o THE PEOPLE v JAPAU 1967 ZR 95submission of no case to answer properly made and upheld where

o essential elements of offence not provedo prosecution evidence discredited in cross

examination o a reasonable tribunal cannot convict

o CASE FOR THE DEFENCE accused advised on rights

o sworn statemento unsworn statemento can remain silento call witnesses

where accused person is unrepresented court has duty to explain statutory defence- CHANDA v THE PEOPLE (1968) ZR 58

SICHOTE v THE PEOPLE (1975) ZR 32-but can not do so on the ground that counsel is inexperienced.

accused first to give evidenceo SHAW v THE QUEEN 1963-64 ZR 167o BARROW AND YOUNG v THE PEOPLE 1966 ZR

43- The accused person must give testimony before his witnesses

o SIKOTA v THE PEOPLE 1968 ZR 42First accused person gives evidence first and cross examined by fellow accused in order of appearance then by prosecutor

o if more than one first to cross examine if in person or represented by different lawyers

first accused person calls all witnesses before next gives evidence and calls witness

HASWELL MVULA v THE PEOPLE (1963-64) Z AND NRLR 171- the defence must support allegations they make in cross examination with evidence

o case in replyo judgmento previous convictiono reports and mitigation

social welfare reports advocate mitigates

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o sentence

SUBORDINATE COURT TRIAL (CPC) PART 6 OF THE CPC deals with trials before the subordinate courts

o Sections 197-221 Section 200-trial in the presence of the accused person

unless dispensed with under section 99 Section 99-attendance can be dispensed with for

offences only attracting a fine or 3 Months imprisonment

Must be in writing or by counsel Where fine not paid can summon Where previous convictions not admitted can

summon Section 202 – adjournments no more than 30 days and

if in custody 15 days Section 203-for non felony can proceed in absence of

accused but conviction can be set aside Section204-

plea plea of not guilty refusal to plead

Section 205 plea of not guilty-the trial can cross examine witnesses by self if not represented

Section 206 acquittal- when the court can do it Section 207-208 defence

Explain the charge again and The rights of the accused person Accused must be the first to give evidence before

his witnesses Section 209 submissions-prosecutor submits first

followed by the defence counsel where ( calls no witnesses)

Only accused gives evidence in defence Accused gives unsworn evidence Remains silent (s. 212)

Section 212 where does not give evidence immediately prosecution sums up and is followed by defence

Section 210 evidence in reply

Section 214- court can

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Convict or Acquit or Make an order

COMMITAL FOR SENTENCE TO HIGH COURT Section 217 committal for sentence to High Court

Where accused is not less than 17 years Antecedents and character are such that greater

punishment be inflicted or minimum sentence is higher than

Section 218 Record sent to high court Court proceeds as if had convicted him, thus

appeal lies in the Supreme Court THE PEOPLE v OSTAIN NKAUSU AND ANOTHER 1979 293

o Sets out principle but was before amendment of section 217 CHOMBA V THE PEOPLE (1975) ZR 245

o Section 217(2) where one receives consecutive sentences the total of which is more than the maximum sentence, the case will not be committed to the High Court for sentencing.

TRIAL BEFORE THE HIGH COURT

Trial before the High Court is after a preliminary inquiry or summary committal

PRELIMINARY INQUIRY

o Section 222 by any subordinate courto Section 223 whenever case not triable by the Subordinate

court or is triable by the High Court in section 10 or 11 Sub-section (3)-will not hold one if information

signed by DPP is presentedo Section 224 procedure;

Charge read procedure explained but no plea Prosecution witnesses called examined, cross-

examined and re-examined Witnesses statements read and asked to confirm and

then signed by witness and court plus reporter Prosecutor closes case defence submit followed by

prosecutors reply

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o Section 225 –medical evidence can be presented without witness being called if author is medical office or Government analyst.

o Section 226-can not object to a charge on ground that for defect in substance or form or for variation between evidence and charge

Where court of view that misled can adjourn for purpose of recalling witnesses

o Section 228-where evidence discloses offence 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 trialo Section 229- right to address courto Section 230-discharge

THE PEOPLE v PETROL ZAMBWELA 2002 ZR 145-there is no provision in the CPC for an acquittal during a Preliminary Inquiry

o Section 231- test sufficient evidence to put accused on his trial committal for trial

o Section 232- summary adjudication where evidence discloses lesser offence

Since plea not taken may need to take plea again before recall of witnesses

o Section 233-accused and witnesses bound over Conditionally Unconditionally

SUMMARY COMMITTAL PROCEDURE

o Section 254-DPP can issue certificate o Section 255-where certificate is issued a Preliminary

Inquiry should not take place or should be abandoned ATTORNEY GENERAL v EDWARD JACK

SHAMWANA AND OTHERS 1981 ZR 12-section 255 prohibits the continuation of a Preliminary Inquiry when DPP issues certificate

THE TRIALo Section 272-Arraignment by information

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Section 223 allows for joining of a person who was not committed if was not discovered

o Section 276- pleao Section 277-plea in baro Section 278- refusal to pleado Section 280 -plea of guilto 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 depositionso Section 152- issuance of a commission

153 parties may examine Section 154 magistrate may apply to the high

courto Section 290 –statement of accused persono Section 291-close of prosecution caseo Section 292-the defenceo Section 294 evidence in replyo Section 296-accused not giving evidence

8.JUDGMENT Section 168 CPC-should be pronounced in open court

o whole judgment reado accused be brought to courto 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 judgmento prepared by presiding justiceo points for determinationo decision and reason for decisiono offence convicted of and sentenceo Where acquittal offence acquitted and words directing that

accused is being set at libertyo 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

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Section 169A CPC- where judge or magistrate is ill ,dies or relinquishes or cesses to be another can deliver

Section 302 CPC court may receive such evidence to help it pass sentence

NYIRONGO V THE PEOPLE (1972) ZR 290-where judgment is lost appeal must be allowed

9. MOTION IN ARREST OF JUDGMENT

An accused person or his advocate may move the court to arrest judgment in a case tried on an information

Section 298- CPC provides that;

o The accused person may, at any time before sentence, whether on his plea of guilty or otherwise, move in arrest of judgment, on the ground that the information does not, after any amendment which the court is willing and has power to make, state any offence which the court has power to try.

o The court may, in its discretion, either hear and determine the matter during the same sitting, or adjourn the hearing thereof to a future time to be fixed for that purpose.

The application can be made at any time before the passing of the sentence but after judgment;

o In cases where the accused has pleaded not guilty or

o Where accused has pleaded guilty

The grounds on which the application can be made are that

o Lack of certainty in the information or does not disclose an offence. There is a defect in the information which defect is not formal and the court has not amended it either at case to answer or in the judgment

o Aggravated robbery not disclosing that one was armed and working with another.

o The charge is founded on an act that was repealed before the plea

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Judgment cannot be arrested on the ground that:

o The evidence does not support the charge

o There was a procedural irregularity during the trial

If the court decides in favour of the accused, he shall be discharged from that information.

THE TRIAL IN DETAIL

MENTAL DISABILITY accused person must plead when charge is read where unable to respond must find out why

section 160 CPC court must inquire into where issue of failure to plead by reason of unsoundness of mind or disability arises

o THE PEOPLE v MUSITINI 1975 ZR 53 the court should immediately enquire when the issue of whether accused is capable of making a defence

section 161 CPCo this may include medical examinationo enters plea of not guilty where finds that not able to make

defenceo THE PEOPLE v MWABA 1973 ZR 271 whether a person

can make a defence should be dealt with as soon as it arises from any person including a medical expert

o THE PEOPLE v BANDA 1972 ZR 307 in the inquiry the court needs to find out whether is capable of making a defence or whether he was insane at the commission of the crime

trial proceeds at end of trial

o acquits if no evidence-161(2)(a) CPCo called upon to give defence MWABA CASE

if sufficient evidence to justify conviction

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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.

o special finding (defence of insanity-section 167)

even where acquitted can order detention-section 161(3)o Mental Disorders Act Cap 305

section 165 CPC- one detained because cannot make a defence must be brought back when ok

o MBAYE v THE PEOPLE 1975 ZR 74 where a person is taken for medical examination even if they have been found not to be able to make a defence they must be tried. They cannot wait until treated.A court cannot make a special finding if it finds one innocent by reason of insanity

o CHABALA v THE PEOPLE 1975 ZR 128 the difference between mental capacity at the time of a trial (fairness of the trial) and at the time of the commission of the offence (criminal responsibility)

no appeal against special findingo MALITA BANDA V THE PEOPLE 1978 ZR 223 no appeal

lies to an order under 161(2)(b) on its merit but where made without jurisdiction.

Onus of establishing unsoundness of mind rests on accused person

o KHUPE KAFUNDA V THE PEOPLE 2005 ZR 31

TRIAL WITHIN A TRIAL in the course of investigation the accused may give incriminating

evidence verbal or written the written one is usually called a warn and caution statement admissibility of a confession is being voluntary and not

truthfulness82

where it is contested that statement was not free and fairo 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 statemento 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 subsequentlyo 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

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

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reception of his evidence and understands the duty of speaking the truth; and his evidence though not given on oath but otherwise taken and reduced into writing so as to comply with the requirements of any law in force for the time being, shall be deemed to be a deposition within the meaning of any law so in force:

Provided that where evidence admitted by virtue of this section is given on behalf of the prosecution, the accused shall not be liable to be convicted of the offence unless that evidence is corroborated by some other material evidence in support thereof implicating him.

ZULU v THE PEOPLE 1973 ZR 326 sets out procedure under section 122

o The court must first decide that the proposing witness is a child of tender years; if he is not, the section does not apply and the only manner in which the witness's evidence can be received is on oath.

o If the court decides that the witness is a child of tender years, it must then inquire whether the child understands the nature of an oath; if he does, he is sworn in the ordinary way and his evidence is received on the same basis as that of an adult witness.

o If, having decided that the proposing witness is a child of tender years, the court is not satisfied that the child understands the nature of an oath, it must then satisfy itself that he is possessed of sufficient intelligence to justify the reception of his evidence and that he understands the duty of speaking the truth; if the court is satisfied on both these matters then the child's evidence may be received although not on oath, and in that event, in addition to any other cautionary rules relating to corroboration (for instance because the offence charged is a sexual one) there arises the statutory requirement of corroboration contained in the proviso to section 122 (1).

o But if the court is not satisfied on either of the foregoing (sufficient intelligence and duty to speak the truth) matters the child's evidence may not be received at all.

CHIBWE V THE PEOPLE 1972 ZR 239 the court must record actual questions and answers on which the conclusion has been reached.

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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.

SentencingPurpose 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: (a) to denounce unlawful conduct; (criticise)(b) to deter the offender and other persons from committing offences; (deterrence)(c) to separate offenders from society, where necessary; (for the protection of the society, oftentimes).(d) to assist in rehabilitating or reforming offenders; (e) to provide reparations (compensation) and or retribution (revenge) for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

Principles of Sentencing A sentence must be proportionate to the gravity of the offence

and the degree of responsibility of the offender. a sentence should be increased or reduced to account for any

relevant aggravating or mitigating circumstances relating to the offence or the offender. This is why it is important that previous convictions, if any, are read out.

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)

where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

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.

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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

PunishmentProvided 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;(h) deportation;(i) any other punishment provided by this Code or by any other law.

Death Penalty Section 25 PC By hanging, by the neck until dead. A death sentence shall not be imposed on a person who

committed the offence under the age of 18. He will instead be detained at the president’s pleasure. A pregnant woman cannot be sentenced to death. She will instead be sentenced to life imprisonment.

Imprisonment – Section 26

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A judge has discretion to order imprisonment with or without hard labour, unless hard labour is prescribed by law.

A person liable to imprisonment for life or any other period may be sentenced for any shorter term.

A sentence can be backdated to when the accused was remanded. The judge has to say “ ...with effect from...” –Section 37

A fine can be imposed instead of or in addition to

imprisonment. 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

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

For offences to be considered as one course of conduct, they must all be committed within a short period of time. Chomba V the people (1975) ZR 245. Appellant had been found guilty of 5 counts of burglary and theft- all committed within 12 days. The trial court ordered that these should run consecutively. On appeal, the supreme court held that the sentences should run concurrently. The court made this statement” this was a series of offences committed over a short period and should have been treated as one course of conduct for the purses of sentence”.

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.

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

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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.

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

(b) Usually on condition that offence is not repeated during suspension of sentence (operation period).

FIFTH SCHEDULE

OFFENCES FOR WHICH COURTS MAY NOT SUSPEND SENTENCE

Any offence punishable by death.Any offence against section 226 of the Penal Code.Arson.Robbery.Any offence in respect of which any written law imposes a minimum punishment.Any conspiracy, incitement or attempt to commit any of the above-mentioned offences.

(c)(d)The period for which the sentence is suspended cannot exceed the

term of the original sentence

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

Where fine is not specified, the amount of fine imposed is unlimited, but may not be excessive.

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

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imprisonment. Court may order a warrant for the levy of the amount on the convict’s movable or immovable property.

Forfeiture Section 29

Compensation –Section 30

Deportation Section 34, 35

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