7th, March, 2024 (Updated)
INTRODUCTION
In
a quest to ensure consistency and fair practice in civil and criminal proceedings,
the legislature has enacted procedural laws. Procedural laws are rules that
govern court proceedings. For instance, the Criminal Procedure Code, Chapter 88
of the Laws of Zambia is the principal statute governing criminal proceedings.
The Constitution of Zambia (as amended) establishes the courts, their functions
and jurisdiction. The High Court Act (as amended) divides the High Court into
specialised divisions, including the Industrial Relations Division, Commercial
Division, Family and Children’s Division, and the General List.
The
High Court (Amendment) Rules, 2020 significantly altered the manner in which
civil proceedings are commenced in the High Court. Procedural rules set
mandatory standards that both the courts and litigants must observe. In Twampane
Mining Co-operative Society Limited v Storti Mining Limited (SCZ Judgment
No. 20 of 2011) the Supreme Court emphasised that adherence to procedural law
is imperative and non-negotiable. Similarly, in BP Zambia PLC v Zambia
Competition Commission (SCZ Judgment No. 21 of 2011) the Court reiterated
that litigants must comply with the prescribed modes of commencement. Failure
to do so may render proceedings irregular and, where the irregularity is
incurable, fatal to the action (Stanley Mwambazi v Morester Farms Limited
(1977) ZR 108).
This
article briefly explains the principal modes of commencement of civil
proceedings in the Subordinate Courts and the High Court of Zambia.
COMMENCEMENT
OF CIVIL PROCEEDINGS IN THE SUBORDINATE COURTS
Article
266 of the Constitution defines a “subordinate court” as a court subordinate to
the High Court. These courts (commonly called Magistrate Courts) are regulated
by the Subordinate Courts Act, Chapter 28 of the Laws of Zambia, which
prescribes their structure, jurisdiction and procedure.
The
main modes of commencement in the Subordinate Court are:
1.
Writ of Summons
2.
Default Writ of
Summons
3.
Originating
Summons
4.
Originating Notice
of Motion
5.
Petition
1.
Writ of Summons
This is the ordinary mode of commencement where the claim is for unliquidated
damages (e.g. negligence, nuisance, breach of contract, defamation) or any
other unspecified claim. It is the default mode unless a written law provides
otherwise (Order VI Rule 1 of the Subordinate Courts Rules).
The
Writ must contain the full names and addresses of the parties, the prescribed
formal parts, the date, the plaintiff’s signature (or that of his advocate) and
a concise statement of the relief sought.
In
the Subordinate Court, proceedings are generally summary in nature and formal
pleadings (Statement of Claim and Defence) are not automatically required
unless the Magistrate so orders in the interest of justice (Order XVIII Rules 1
and 2).
2.
Default Writ of Summons
Where the claim is for a debt or liquidated demand, the plaintiff may issue a
Default Writ of Summons (Order VI Rule 4(1)). It must be accompanied by:
- an affidavit verifying the debt; and
- a form of Admission, Defence and Counter-claim in
the prescribed form (Order VI Rule 4(2)).
3.
Originating Summons
Used where the matter is suitable for determination in chambers or where a
written law so provides, particularly where there is little or no substantial
dispute of fact.
4.
Originating Notice of Motion
Used where a statute requires proceedings to be commenced by “application”
without specifying the form, or where the Rules expressly so provide.
5.
Petition
Used where a written law specifically requires proceedings to be commenced by
petition.
COMMENCEMENT
OF CIVIL PROCEEDINGS IN THE HIGH COURT
The
High Court has unlimited original jurisdiction in civil and criminal matters
(Article 134 of the Constitution). Commencement is governed primarily by Order
VI of the High Court Rules (as amended by the High Court (Amendment) Rules,
2020).
1.
Writ of Summons (General List)
Except where otherwise provided by written law or the Rules, an action in the
High Court is commenced by Writ of Summons endorsed with, and accompanied by:
(a)
a Statement of Claim;
(b) a list and description of documents to be relied on at trial;
(c) a list of witnesses to be called by the plaintiff at trial; and
(d) a letter of demand whose receipt has been acknowledged by the defendant, or
an affidavit of service of the letter of demand setting out the claim in
detail.
(Order
VI Rule 1 of the High Court Rules as amended).
The
Letter of Demand is now a mandatory pre-action requirement. Failure to issue
and serve it properly may render the action incompetent.
2.
Originating Summons
Used for matters that may be disposed of in chambers or where a written law or
the Rules so provide (Order VI Rule 3 and Order XXX of the High Court Rules).
Such matters ordinarily involve little or no substantial dispute of fact. The
Originating Summons is supported by an affidavit; the defendant responds by
affidavit in opposition.
Examples
include certain applications under the Lands and Deeds Registry Act,
construction of documents, and other chamber matters.
3.
Originating Notice of Motion
Used where a statute requires proceedings to be begun by application without
prescribing the precise form, or where the Rules expressly provide for it.
Evidence is usually by affidavit.
Common
examples include:
- applications for judicial review (Order 53 RSC);
- certain applications under the Rent Act and the
Landlord and Tenant (Business Premises) Act.
4.
Petition
Used where a written law specifically requires commencement by petition.
Examples include:
- Parliamentary election petitions (Electoral
Process Act);
- applications for the enforcement of fundamental
rights and freedoms (Article 28 of the Constitution and the Protection of
Fundamental Rights Rules);
- divorce petitions (Matrimonial Causes Act);
- company winding-up petitions (Companies Act);
- referendum petitions.
5.
Notice of Complaint (Industrial Relations Division)
Proceedings in the Industrial Relations Division are commenced by Notice of
Complaint supported by an affidavit (Industrial and Labour Relations Act, Cap
269 and the Industrial Relations Court Rules). This is the exclusive mode for
most employment and labour matters falling within the exclusive jurisdiction of
the Division.
6.
Appeal
An appeal from a Subordinate Court or certain tribunals is commenced by filing
a Notice of Appeal (with a Memorandum of Appeal) in the court or tribunal
below, which is then transmitted to the High Court (Order XLVII of the High
Court Rules and section 28 of the Subordinate Courts Act).
7.
Writ of Habeas Corpus ad Subjiciendum
A prerogative writ used to challenge unlawful detention. It is one of the ways
of invoking the High Court’s supervisory jurisdiction (Mutale v
Attorney-General (1976) ZR 139; Fred Hamaamba v Attorney-General).
CONCLUSION
The
mode of commencement is not a mere technicality. Choosing the wrong mode, or
failing to comply with mandatory accompaniments (especially the Letter of
Demand and the documents required under Order VI Rule 1), can be fatal.
Practitioners and students must carefully identify the correct mode by
reference to the nature of the claim, the applicable statute and the Rules of
the relevant court or division.
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