ASSIGNMENT COVER SHEET

Student ID: 2106636, 1905869,2106584, 2106610,1804701, 2106687, 1905863

Student Name: Mwa’shamwenge Litana, Nsangu Tembo, Ruth Kamwadi, Munashe Chiriga,
Daniel Nsaka, Jeremiah Fungwa, Geza Muwezwa

Course Code: LAW307

Course Title: Civil and Criminal Procedure

Instructor Name: Mr. Hakasenke

Essay/Assignment Title: Initiating Litigation in the High Court of Zambia: An In-Depth

Analysis of Procedural Modes and Interlocutory Applications

Due Date: 30th October,2023

Declaration:

“I acknowledge that submitting this document binds me to the following:

To the best of my knowledge, I assert that no part of this assignment has been copied from
the work of anyone else, be it another student or any other author or from any source except
where due credit is given in the text below, or has been written for me by someone else
except where the relevant instructors and authorities have explicitly permitted such
collaboration.”

SIGNATURE: Team 3

Instructors Comments:

Grade [ ]

30029 Kitwe - Ndola Dual Carriage Highway. P.O Box 240271, Ndola, Zambia.
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Initiating Litigation in the High Court of Zambia: An In-Depth Analysis of Procedural

Modes and Interlocutory Applications

Understanding the various ways to initiate legal actions in the High Court of Zambia is

crucial, as it forms the basis of litigation. This assignment explores the necessity of

comprehending these methods, including Writ of Summons, Petitions, Originating Notice of

Motion, and Originating Summons. It also delves into interlocutory applications, such as time

extensions, consolidation, third-party actions, and interim injunctions, which are pivotal in

shaping court procedures and ensuring an equitable justice system (Matibini ,2015).

Commencing actions in the High Court of Zambia

The commencement of legal action in the High Court follows statutory regulations. The

High Court Act, specifically Order VI (6) of the High Court Rules, outlines that cases should

typically begin with a Writ of Summons and a statement of claim, unless stated otherwise by

written law. This emphasizes that the choice of procedure for initiating legal actions should be

dictated by the law, not just the parties' preferences, even when considering the specific remedy

sought. This principle was established in the influential case of New Plast Industries vs.

Commissioner of Lands and Others (2001), clarifying that the nature of commencing legal

actions is primarily guided by the relevant statutory law..

Writ of Summons-O. 6

As has been stated, unless otherwise specified by current legislation, all legal actions

must be launched through the use of a writ of summons. Order VI, rule 1 of the High Court rules

formally prescribes a writ of summons. It is issued at the plaintiff's request with the primary goal

of alerting the defendant of the claim and obliging them to confirm receipt of the legal papers. In

addition, a writ of summons must be accompanied by many necessary documents, including an

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affidavit, a list of documents to be used as evidence, a list of witnesses who will be asked to

testify, and a letter of demand backed by an affidavit, according to Rule 1. Failure to include any

of these papers, as specified in rule 1(2) of the High Court Rules, renders the summons null and

invalid.

Originating Summons- O. 6 r 1(3)

According to Matibini (2015), certain issues can be settled exclusively through written

evidence submitted in an affidavit. No oral testimony or cross-examination is necessary when no

contested issues exist. The Originating Summons, the second method for commencing legal

proceedings, facilitates this. Order VI, rule 1(3) of S.I no 58 of 2020 specifies this approach. It

mandates that cases addressed in the judge's chambers under any written law should commence

using an Originating Summons accompanied by an affidavit. In a separate context, Order 30

Rule 11 lists issues suitable for chambers. In Rural Development Corporation Limited v Bank of

Credit and Commerce (Zambia) Limited (1987), the Supreme Court ruled that matters aligning

with English legal practices applicable in Zambia can also be resolved in chambers, implying

their initiation through originating summons.

Commencement by way of Originating Notice of Motion

An originating notice of motion must be filed before the court can consider any

application for which no particular procedure has been established by written law or the High

Court Rules. Therefore, an originating notice of motion should be utilized where a legislation

specifies that proceedings may be started by application but does not specify the process

(Matibini, 2015, 151). In the case Re. Kamaya (1987), it was noted that an Originating Notice of

Motion can be employed, such as applying for bailiff appointment or judicial review under O.53

r.5(1) RSC 1999, as listed in The White Book, RSC 1999 O. 102. Therefore, originating
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summonses must be used to apply to the court for possession of the properties covered by the

Rent Act. Order VI, Rule 2 of the High Court Rules specifies this approach.

Commencing by way of Petitions

Another way to start legal proceedings at the High Court is by a petition.

Regulations, statutory instruments, or statutes may specify how a petition is to be used. Petition

types pertaining to constitutional issues, election disputes, business matters, and marriage actions

are the most prevalent (Matibini, 2015, 159).

The Supreme Court confirmed in Mutale v. Munaile (2007), that a petition is an

uncommon method of initiating legal action and is utilized in situations where it is mandated by

law or regulation. Regarding constitutional issues, the Protection of Fundamental Rights

Regulations were released in 1969. According to Rule 2, a petition shall be submitted in order to

make a request under Article 28 of the Constitution.

Introduction to Interlocutory Applications

In judicial processes, interlocutory applications might involve injunctions, party

substitutions, and jurisdictional challenges. They can be made in chambers or in public, subject

to certain guidelines in High Courts. Legal points or information from pleadings may be an

exception to the rule, which normally calls for a motion backed by an affidavit. Respondents

may submit counter-affidavits, and in the absence of clear documentation, competing affidavits

may necessitate oral testimony (Iyizoba, 2016).

Summons for Abridgment/Enlargement of Time- O.2 r.2 SCR

High Court Rules permit time extensions by mutual agreement. If not, court approval

may be sought, even after the deadline. In Zambia Consolidated Copper Mines v EDavid

Chileshe, the Judge fast-tracked the trial due to the company exit announcement causing layoffs.
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In Sipalo v Mundia (1966) ZR 105 (HC), the court emphasized that during the appeal against a

Registrar's decision in civil procedure, an extension of time can be sought without a special

summons. The court holds the discretion to extend the timeframe to prevent adverse

consequences, provided valid reasons for such an extension are presented by the applicant.

Summons for Consolidation of Actions- O.3 r.3 SCR

This ought to be done before the experiment to combine two causes of action into one.

Order 3 Rule 3 of The Supreme Court Rules provides for it. Thus, if the same parties are

pursuing two concurrent actions based on the same/similar facts, the two can be consolidated

into a single cause to be decided by a single court. This eliminates a plethora of cases on the

exact same set of facts, as well as the possibility of two courts reaching different conclusions on

those facts.(Matibini, 2015)

Summons to Serve Writ by Way of Substituted Service- O.7 r.5

Personal service involves physically delivering legal proceedings to a defendant. In cases

of unknown addresses, as seen in Madison Finance Company Limited v. Yotamu Chisi, courts

permit substituted service through newspaper ads or Registered Post if the defendant's P.O. Box

is known. Substituted service ensures papers reach the defendant when personal service is

unfeasible. This is provided for under Order 7 Rule 5 of the SCR.

Summons for Joinder/misjoinder [O 8 Rule 5 HCR]

A legal process called a summons for joinder is used to include more parties in a legal

dispute. This is provided for under Order 8 Rule 5 of the High Court Rules. Either the original

plaintiff or the defendant may start it. The court must be convinced by the joinder summons that

the new party is interested in the proceedings and that their addition won't seriously harm either

party's case. Conversely, misjoinder happens when a party is unjustly added to the case even if
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they have no affiliation or link to the initial proceedings. An application filed during judicial

proceedings is known as an interlocutory application (Matibini, 2015).

Summons for Arrest of an Absconding Debtor [0. 21 SCR, s. 10 Cap 77]

Another legal action available is a request for the arrest of a debtor who has gone into

hiding, as described in Order 21 of the Supreme Court Rules and Section 10 of the Debtor’s Act,

Chapter 77 of the Laws of Zambia. The major goal of this application is to keep the debtor from

escaping legal ramifications. It was held inter alia in the case of Stanbic Bank v Macoquip

Zambia Ltd (2018) that the Court has the ability to issue an arrest order under Section 10 of the

Debtor’s Act. This applies in circumstances when the plaintiff produces sworn proof at any

moment prior to the final decision in any litigation before the High Court or Subordinate Court,

establishing a reasonable conviction that the debtor intends to flee Zambia to avoid legal

proceedings.

Summons for Interim Attachment of Property [O.22 SCR]

Interim property attachment, typically pursued as an interlocutory application in the High

Court, addresses specific issues or provides interim relief to parties (Verdun-Jones & MacAlister,

2005). The case of GDC Logistics v Kanyanta and 13 Others defines interim attachment of

property as a provisional relief to secure the defendant's property during ongoing legal

proceedings, primarily serving to protect parties' interests in legal disputes. Additionally, some of

the key purposes of interim attachment of property include preservation of assets by preventing a

defendant from disposing off or transferring their assets or property in a way that would make it

difficult or impossible for the plaintiff to recover any judgment awarded in their favor. (Verdun-

Jones & MacAlister, 2005).

Third Party Proceedings [O. 12 SCR]

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A third-party proceeding, as defined in Order 12 of the Supreme Court Rules, is a distinct

sort of interlocutory judicial application. Once the case is filed, the defendant may claim that a

third party should be engaged to share or indemnify them against the lawsuit's liability. In this

case, it is the defendant's obligation to engage the third party in the legal action via third-party

procedures in order to gain that sharing or indemnity. In certain circumstances, the burden of

proof is on the defendant. These petitions are started by serving a formal notice (Scott, 1999).

According to Matibini (2015), it is critical for the defendant to prove a viable claim

against the third party. As an example, if the defendant is being sued for a car accident and

claims that the accident was largely or entirely caused by a third party, this serves as a practical

example.

Summons for Interim Injunction

Lastly, High Court Rules O 23 r. 1 offer interim injunctions to prevent property damage

in ongoing court cases. Seek it using an ex parte summons and supporting affidavit. It is not an

independent cause of action, and it will usually cease once the main cause of action is concluded.

In the case of Shell and BP Zambia LTD v Conidaris and Others (1975), it was held that an

interim injunction is purely granted by discretion of the court and the onus lies on the person

applying to satisfy the court.

Conclusion

To recap, the discussion has gone into great detail about all of the forms of proceeding in

the High Court of Zambia. It contains precisely defined writs of summons and the documentation

that must be filed with them. Originating Summons and Originating Notice of Motion have also

been thoroughly described. A precise definition of what a petition is has also been given. Finally,

interlocutory applications have been described in accordance with their particular laws.
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References

Legislation

Constitution of Zambia (Amendment) [No. 2 of 2016]

https://www.parliament.gov.zm/sites/default/files/documents/amendment_act/

Constitution%20of%20Zambia%20%20(Amendment),%202016-Act%20No.%202_0.pdf

The High Court (Amendment) Rules, 2020. https://www.judiciaryzambia.com/wp-

content/uploads/2019/11/The-High-Court-Amendment-Rules-2020.pdf

Case Law

Appollo Refrigeration Services Company Limited v Farmers House Limited (1985) ZR 182 SC

183. https://old.zambialii.org/node/2201

American Cyanamid Co v Ethicon Limited [1975] A.C. 396, [1975] 1 AII E.R. 504

GDC Logistics Zambia Ltd v Kanyata and Ors (Appeal 144 of 2014) [2017] ZMSC 225 (26

April 2017)

Mutale v Munaile (SCZ Judgement 14 of 2007)

https://zambialii.org/akn/zm/judgment/zmsc/2007/188/eng@2007-07-25

New Plastic Industries v Commissioner of Lands and Another (SCZ Judgment No. 8 of 2001)

[2001] ZMSC 19 (9 May 2001) https://old.zambialii.org/node/2485

Re Kamaya (1987) ZR 7

Rural Development Corporation Ltd v Bank of Credit & Another (S.C.Z. Judgment 8 of 1987)

[1987] ZMSC 14 (22 April 1987)

https://zambialii.org/akn/zm/judgment/zmsc/1987/14/eng@1987-04-22

Sipalo v Mundia (1966) ZR 105 (HC)

Stanbic Bank v Micoquip Zambia Limited (Appeal No. 180/2015) [2018] ZMSC 47 (8 June
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2018); https://old.zambialii.org/node/13390

Zambia Consolidated Copper Mines v Joseph David Chileshe (SCZ JUDGMENT NUMBER 21

OF 2002)

Books

Iyizoba, C. (2016). Proceedings in interlocutory Applications: Injunctions, Stay of Proceedings

and Execution.

Matibini, P. (2015). Zambian Civil Procedure: Commentary and Cases. LexisNexis.

Rural Development Corporation Ltd v Bank of Credit & Another (S.C.Z. Judgment 8 of 1987)

[1987] ZMSC 14 (22 April 1987)

https://zambialii.org/akn/zm/judgment/zmsc/1987/14/eng@1987-04-22

Scott, R. (1999). The Supreme Court Practice 1999 (1999 ed.). Sweet & Maxwell Ltd.

Verdun-Jones, S. N., & MacAlister, D. (2005). Introduction to Criminal and Civil Law,

Nelson Education Limited.