NATIONAL INSTITUTE OF PUBLIC ADMINISTRATION

NIPA

OUTREACH PROGRAMMES DIVISION

DISTANCE LEARNING

BACHELOR OF LAWS (LLB)

PICTURE

LLB: 101 LEGAL PROCESS

DAKA FRANCIS WILLIAM (COMM), DIL NIPA, LLB ZAOU, LLM AIU

2015

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About this LLB 101Legal process Module
The Family Law Module has been produced by National Institute of Public Administration (NIPA). All
modules produced by the Institute are structured in the same way, as outlined below.

How this Legal process Law Module is structured

The Module overview

The module overview gives you a general introduction to the module. Information contained in the module
overview will help you determine:

What you can expect from the course.

How much time you will need to invest to complete the course.

The overview also provides guidance on:

Study skills.
Where to get help.
 Assignments and assessments

 Activity icons

We strongly recommend that you read the overview carefully before starting your study.

The Module content

The Module is broken down into eight (8) units. Each unit comprises:

An introduction to the unit content.

Unit outcomes.
New terminology.
Core content of the unit with a variety of learning activities.
A unit summary.
Assignments and/or assessments, as applicable.

For those interested in learning more on this subject, we provide you with a list of additional resources at the
end of this Land law; these may be books, articles or web sites.

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Your comments
After completing this LLB 101Legal processLaw Module, we would appreciate it if you would take a few
moments to give us your feedback on any aspect of this course. Your feedback might include comments on:

Content and structure.

Reading materials and resources.
Assignments and Assessments.
Duration.
Support (assigned tutors, technical help, etc.)

Your constructive feedback will help us to improve and enhance this course.

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Welcome to LLB 101Legal process Law Module
This Legal process Law Module gives an in-depth knowledge of the legal process law in Zambia

Module learning outcomes

Upon completion of this Module, you will be able to:

Time Frame Expected duration of this Module is 6 months

Formal study time required is 4 weeks before the beginning of the
semester
Self-study time recommended is 4 hours per week

Study As an adult learner your approach to learning will be different to that of your
skills
school days: you will choose what you want to study, you will have
professional and/or personal motivation for doing so and you will most likely
be fitting your study activities around other professional or domestic
responsibilities.
Essentially you will be taking control of your learning environment. As a
consequence, you will need to consider performance issues related to time
management, goal setting, stress management, etc. Perhaps you will also need
to reacquaint yourself in other areas such as essay planning, coping with exams
and using the web as a learning resource.
Your most significant considerations will be time and space i.e. the time you
dedicate to your learning and the environment in which you engage in that
learning.
We recommend that you take time now—before starting your self-study—to
familiarize yourself with these issues. There are a number of excellent
resources on the web. A few suggested links are:

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  [Link]
The “How to study” web site is dedicated to study skills resources. You will
find links to study preparation (a list of nine essentials for a good study
place), taking notes, strategies for reading text books, using reference
sources, test anxiety.

 [Link]
This is the web site of the Virginia Tech, Division of Student Affairs. You
will find links to time scheduling (including a “where does time go?” link),
a study skill checklist, basic concentration techniques, control of the study
environment, note taking, how to read essays for analysis, memory skills
(“remembering”).

 [Link]
Another “How to study” web site with useful links to time management,
efficient reading, questioning/listening/observing skills, getting the most out
of doing (“hands-on” learning), memory building, tips for staying
motivated, developing a learning plan.
The above links are our suggestions to start you on your way. At the time
of writing these web links were active. If you want to look for more go to
[Link] and type “self-study basics”, “self-study tips”, “self-
study skills” or similar.

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Need Help? In case you need help, you can contact NIPA at the following
website, phone number or you can email.

[Link]
NIPA-Main Campus – Outreach Programmes Division
Phone Numbers:+260-211-222480
Fax:
e-mail address:opd@[Link]
The teaching assistant for routine enquiries can be located from the
Outreach Division from 08:00 to 17:00 or can be contacted on the
numbers and email address indicated above.

Library
There is a library located at the main campus along Dunshabe Road.
The library opens Monday to Friday from 08:00 to 17:00.
Assignments There shall be one assignment and a test during residential school
given for this module and the assignments should be sent by post or
email them to the provided email addressed to the Outreach
Programmes Division – Nigeria Hall.
Assignments should be submitted to Outreach Programmes Division
Registry.

Assessments There shall be a minimum of two (02) assessments given to the

students undertaking this subject
These assessments shall be teacher marked assessments.
The assessments shall be determined and given by the course tutors
after you have covered a number of topics
The teacher/tutor shall ensure that the assessments are marked and
dispatched to the student within a period of two weeks.

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Getting around the LLB Legal Process law Module

Margin icons

While working through this Legal processlaw module, you will notice the frequent use of margin icons.
These icons serve to “signpost” a particular piece of text, a new task or change in activity; they have
been included to help you to find your way around this land law module.

A complete icon set is shown below. We suggest that you familiarize yourself with the icons and their
meaning before starting your study.

Activity Assessment Assignment Case study

Discussion Group Help Note it!

activity

Outcomes Reading Reflection Study skills

Summary Terminology Time Tip

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Learning tips
You may not have studied by distance education before. Here are some guidelines to help you.

How long will it take?

It will probably take you a minimum of 70 hours to work through this study guide. The time should be
spent on studying the module and the readings, doing the activities and self-help questions and
completing the assessment tasks.

Note that units are not all the same length, so make sure you plan and pace your work to give yourself
time to complete all of them.

About the study guide

This study guide gives you a unit-by-unit guide to the module you are studying. Each unit includes
information, activities, self-help questions and readings for you to complete. These are all designed to
help you achieve the learning outcomes that are stated at the beginning of the module.

Activities, self-help questions and assessments

The activities, self-help questions and assessments are part of a planned distance education programme.
They will help you make your learning more active and effective, as you process and apply what you
read. They will help you to engage with ideas and check your own understanding. It is vital that you take
the time to complete them in the order that they occur in the study guide. Make sure you write full
answers to the activities, or take notes of any discussion.

We recommend you write your answers in your learning journal and keep it with your study materials as
a record of your work. You can refer to it whenever you need to remind yourself of what you have done.

Unit summary
At the end of each unit there is a list of the main points. Use it to help you review your learning. Go
back if you think you have not covered something properly.

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Studying at a distance
There are many advantages to studying by distance education – a full set of learning materials as
provided, and you study close to home in your own community. You can also plan some of your study
time to fit in with other commitments like work or family.

However, there are also challenges. Learning at a distance from your learning institution requires
discipline and motivation. Here are some tips for studying at a distance.

1. Plan – Give priority to study sessions with your tutor and make sure you allow enough travel time
to your meeting place. Make a study schedule and try to stick to it. Set specific days and times
each week for study and keep them free of other activities. Make a note of the dates that your
assessment pieces are due and plan for extra study time around those dates.

2. Manage your time – Set aside a reasonable amount of time each week for your study programme
– but don’t be too ambitious or you won’t be able to keep up the pace. Work in productive blocks
of time and include regular rests.

3. Be organised – Have your study materials organized in one place and keep your notes clearly
labeled and sorted. Work through the topics in your study guide systematically and seek help for
difficulties straight away. Never leave this until later.

4. Find a good place to study – Most people need order and quiet to study effectively, so try to find
a suitable place to do your work – preferably somewhere where you can leave your study
materials ready until next time.

5. Ask for help if you need it – This is the most vital part of studying at a distance. No matter what
the difficulty is, seek help from your tutor or fellow students straight away.

6. Don’t give up – If you miss deadlines for assessments, speak to your tutor – together you can
work out what to do. Talking to other students can also make a difference to your study progress.
Seeking help when you need it is a key way of making sure you complete your studies – so don’t
give up.

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 LEGAL PROCESS
INTRODUCTION

This Legal Process module introduces students to the study of laws and legal systems in Zambia. It shows an
understanding of law and of the key concepts that are covered in the introductory Chapters. The density is to
a large extent attribute to the history of the law of this country and the perpetuation of Zambia as a dual legal
system.
The materials on the concept of law include some definitions. In examining these definitions, students are
advised to carefully take stock of the meanings of the terms used and the context in which they arose. In
other words, what is the law that the terms try to define and what legal systems may justify such an
understanding of law?
The law and society materials enable students to glean an explanation of law and thus make it easier for
students to articulate the relevance of various branches of law and the role of law in society. It provides a
perspective of the law, which emphasizes justice as the ultimate aim. In other words, regardless of how one
might define law it should be justifiable.

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UNIT 1: THE NATURE OF LAW IN SOCIETY

Learning outcomes
Upon completion of this unit, you will be able to:
• Define what law is
• Explain the functions of law in society
• Distinguish law from other elements
• Explain the different schools of thoughts
• Distinguish between criminal and civil law

Topic 1: Meaning of Law

There are various definitions that have been advanced about what law is. Different scholars have advanced
their definition of law in accordance with what they understand and believe in. For example, Thomas Hobbs
defines law as “the conduct of him or them which has a coercive power.”

On the other hand, John Austin in his theory, defined law as “commands which emanates from a sovereign
and breach of which should attract sanctions.”

Margaret Munalula, defines law as “a system of rules or a set of rules recognised as commanding or
forbidding certain actions which are intended to regulate the conduct of all persons within a particular state
and are enforceable by the courts of the state”.
However, the law of a particular state is the body of rules designed to regulate human conduct within a
particular state. Law is supposed to have rules of conduct which are enforced by the constituted courts of the
state.

Generally speaking, there are 3 types of rules:

1. Rules which forbid certain types of behavior under threat penalty
2. Rules which require people to be compensated when they are injured by others
3. Rules which specify what is to be done in certain types of human activity. For example, requirements
when forming a company, making a will or when marrying.

Therefore, the nature of law should bring out the following elements:
a) Normative: obligatory on human conduct
b) Institutionalized
c) Coercive
d) General application

Activity

1. What is law?
2. Explain what the nature of law brings out

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Topic 2: Purpose or Functions of Law

Human communities need law in their interaction. Although it is true that all men are born free and endowed
with fundamental rights and freedoms which one can alienate, and which they are free to exercise as they
like, complete freedoms and absolute rights do not exist. No one can say “ I am free to do anything at any
time in any manner and anywhere.” If all members of a society were free to behave in that manner, confusion
and disorder would ensue.

Therefore, an individual citizen is only free to do as helices as long as he does not injure the rights of other
citizens and does not disturb the public. The first purpose of law in society, therefore, is for the preservation
of life and protection of property. The other purpose is to balance conflicting interests in dispensing justice.
The administration of justice becomes possible only through law, because law demands equality for all.

Most laws, especially criminal law and law of torts, have coercive elements in them, which help to achieve
their efficiency. It is for this reason, that a government should have enforceable techniques of affecting its
social norms. Without sanctions and enforcement systems, compliance with the law would be difficult to
achieve.
To be specific, functions of law include:

a) Law as a protection of individual freedoms-human rights

These laws protect and promote the aspect of human rights of individual in society
b) Law as a medium of dispute resolution-law of tort
These laws regulate dispute that fall under civil law with regards to torts that are committed against
each other in society.
c) Law as a platform for human co-operation-law of contract
These laws impute obligations that parties make and their fulfillment. The y look at what happens in a
case a party to an agreement fail or breaches the agreement of the said contract.
d) Law as a regulation of governmental powers- constitutional and administrative law
These laws help in the establishment of powers and functions of the state and then how such powers
are to be regulated and be accountable to its citizen. They also establish, promote and protect the
rights of individuals, groups and minority groups.
e) Law as preservation of order-public order law and criminal law
These laws are classified under Penal statutes and provide for criminal wrongs and sanctions in case
there is a breach of such a wrongs.
f) Law as attainment of justice-rules of natural justice and bill of rights
These laws provide for guaranteed

As a result of the foregoing, a question that needs to be answered is, “what would happen if there would be
no law”?

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If such a question is asked, the only reasonable answer would be that, “the law of the jungle would prevail.”
This means, the strongest would impose their will on the weak and the weak would be without effective
protection. Man would be subjected to the whims and caprices of a dictator so that from day to day man
would not know what action the dictator would regard as lawful or unlawful. It is to avoid such extremes that
the law is necessary in a civilized society and the modern world of today. It is almost practically impossible
to imagine a state existing without a comprehensive system of state law.

Activity

1. Explain in detail the functions of law in society

2. How would society be if there was no law?

Topic 3: Law and Other Social Elements

Law and Justice

The concept has been defined by a lot of scholars both lawyers and philosophers. Cicero defined Justice as
“rendering to everyone that which he is entitled to him.”He added that justice demands equality and that
everyone is equal before the law. This means that it makes no difference whether a good man has defrauded a
bad man. The law looks only to the character of the injury and treat the party as equals. The judge tries to
equalize them once again by imposing sanctions. In its simplicity, justice is that which is right or fair in any
given circumstance.

The courts are concerned with administering the law and not administering justice. When a case is before the
court, the judge must decide the matter in accordance with settled legal principles and the fact that result may
appear to be unfair or unjust is immaterial or irrelevant. However, judges may express their feeling that the
result was/is unjust even though correct according to the law.

Law and justice are different but they meet under a branch of law called equality, which is based on the
principle of fairness and just. Equality is a system of doctrines and procedures which developed side by side
with common law having originated in the doctrines and procedures developed by the chancery in its attempt
to remedy some of the defects of the common law.

Plato defines justice as “a relationship amongst individuals depending on their social

organization.”According to Plato, justice would be achieved if each man receives the equivalent of what he
produces and allowed to do the best he can for the society equivalent to the full privilege of what he receives.
According to the naturalist Aristotle who is often said to be the father of natural law, he stated that “justice
was that which was equal, lawful and fair.”He considered justice as a matter of equitable relations between
people in the society. We are equal only in so far as we are compared to another person in the same group or
status. He controversially justified slavery by stating that a slave could only be compared yet to another
slavei.e, equality between the equals

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Law and Morality
Morality simply means the right way to conduct oneself. This is subjective and is influenced by the personal
feelings because it depends on some other factors such as the country one belongs to, its cultural background
and general public opinion. Man resort to various kinds of rules to guide their lives.

Scholars have argued that law and morality are working partners and that it is imposable to completely
ignore the relationship between the two.

Therefore, it must be noted that the law which is enforced by the courts must be distinguished from morals or
morality. This means that they shall not handle one thing but represents two different theories. On the other
hand, law and morality may evidently overlap. For example, if an individual kills another, this shall offend
both the principles of law and morality. In this event, the state is to punish the offender.

In contrast, law and morality may be looked at to regulate two different principles of law. For example, a
homosexual behaviour in private and selected states between two consenting adults is not illegal although
many people would regard it as a breach of moral law.

Explicit Differences between law and moral

1. The law deals with the external behavior while morality concentrates on the internal processes of
intent motive and consciousness;
2. The duties that the law speaks of are often accompanied by corresponding rights i.e. the duty to pay
money under a contract is often accompanied by the corresponding rights in the other party to
demand such payments but moral duties are not necessarily accompanied by rights.
3. Violation of a law is punishable by a mechanism of a state; whereas sanctions of morality often take
such forms as social intolerance and religious census i.e. the sanctions of morality are neither
organized nor certain. The sanctions of the law usually include punishment fines or award of damages
etc.
4. The law is often definite in its formulation than morality. The law usually proceeds from a definite
law making authority while morality neither has a formulating nor an forcing authority. For example,
we may know what moral standards of a particular society but one cannot point at one authority that
brought about the standards or indeed the enforcing authority.
5. The legal verdict in a given situation tends to be black and white while the moral verdict may be
varying “shades of gray”.
6. Morality tends to want to satisfy justice, fairness or achieve certain audition or achieve certain ideas
but the law does not necessarily strive for the same.

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Law and Democracy
It is claimed that in a constitutional democracy judges should be the preserves of rights. They should be free
to protect rights against governmental interference. To make this a reality, specific rights must be entrenched
in the constitution. But the judicially should not, without reasonable grounds, defeat legislative intent where
this is clearly spelled out in the legislation in question. Laws’ role is to permit democracy to flourish. It must
ensure that the government treats a person as a full member of human community.

Law and Rights

Prof. Kim describes that rights are “claims to something” to do or not to do something. He explains this by
asserting that “someone who has a right can provide a unique reason for action on the part of the right holder
or others. Hence, the law provides for the protection and promotion of human rights. For example, the
Constitution Chapter 1 of the laws of Zambia is law and provides for rights under part III.

Activity

1. Explain your understanding of law and distinguish it from other elements like justice or rights
2. Distinguish law and morality in society
3. Discuss the effect of morality in society and if morality can be enforced

Topic 4: Schools of Thought about Law

There are six main schools of legal philosophy in which writers expressly define law or
give a general description of what law is. These schools are:
a) Natural law school
b) Positivist school
c) Sociological school
d) Historical school
e) Realist school
f) Socialist school

The Natural Law School

The natural law theory is the initial school of thought to develop under jurisprudence and has its origins in
the primeval Greek civilization. In the earliest times many societies believed that there was a link between
the natural world of physical matter and the spiritual world of Gods and spirits. They questioned their own
origins and the origins of the other forms of creation, and concluded that the spiritual world was in control of
the physical World and that human kind belonged to the physical world. It was as a result of this thinking
that gave rise to the idea that there was actually a higher authority in the spiritual world which controlled
human existence and the rest of the natural world. This school then concluded that it is this superior being in

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the spiritual world that planned a set of rules, principles and doctrines which mankind was able to discover
through his power of reason that was given to them.

Natural law is thus an idea that there are rational objective limits to the power of legislative rulers. The
foundations of law are accessible through human reason and it is from these laws of nature that human
created laws gain whatever force they have.

This view is frequently summarized by the maxim an unjust law is not a true law , in which 'unjust' is
defined as contrary to natural law. Natural law is closely associated with morality and, in historically
influential versions, with the intentions of God. To oversimplify its concepts somewhat, natural law theory
attempts to identify a moral compass to guide the lawmaking power of the state and to promote 'the good'.
Notions of an objective moral order, external to human legal systems, underlie natural law. What is right or
wrong can vary according to the interests one is focused upon. Natural law is sometimes identified with the
maxim that "an unjust law is no law at all."

Therefore, in this school, the law was divided into two sets of law namely, natural law and human law.
Natural law was superior while human law was inferior and was to correspond to natural law or risk being
called unjust law.

The Positivist School

The was the second school that emanated from the natural law school during the 17th and 18th centuries
where several theorists challenged certain aspects of the natural law [Link] is actually a reaction to natural
law teachings. The argument was that natural law had nothing to do with God because to them what mattered
was the rationality in man which made him able to derive the perception of natural virtues. Others argued
that laws cannot be immutable because they were dynamic and changed with social beliefs and values.
The theorists who challenged the natural law school ultimately gave rise to the positivist school of law in the
19th century. According to this theory, law is “as it is” and not “as it ought to be”.
Bentham opposed natural law proposition that human law derived its validity from God’s law. His theory
became known as “utilitarianism” and defined law as “a means of emancipating the individual person from
the constraints and restraints imposed upon his freedom”

Therefore, positivism is a theory of law which is directly opposed to natural law Positivism arose at the time
when science was making an impact. The new scientific age was no longer satisfied with natural law theories
and their explanation of the natural happenings. Positivists tried to define law, not by its contents, but
according to formal criteria.

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Legal Positivism, by contrast to natural law, holds that there is no necessary connection between law and
morality and that the force of law comes from some basic social facts.

Positivism simply means that law is something that is "posited": laws are validly made in accordance with
socially accepted rules. The positivist view on law can be seen to cover two broad principles: Firstly, that
laws may seek to enforce justice, morality, or any other normative end, but their success or failure in doing
so does not determine their validity. Provided a law is properly formed, in accordance with the rules
recognized in the society concerned, it is a valid law, regardless of whether it is just by some other standard.
Secondly, that law is nothing more than a set of rules to provide order and governance of society. No legal
positivist, however, argues that it follows that the law is therefore to be obeyed, no matter what.

According to the positivists, law is that which is laid down in the form of precedents, statutes etc. positivists
admit that, issues of morality or ethics do influence law makers or judges, but it is only incorporation of these
moral and ethics into precedents and status which gives them the quality of law. An unjust law would be law
nonetheless, as long as it has been given the stamp of validity through precedence and statutes. Any
proposition which has satisfied formalities and procedures of becoming actual law is law, irrespective of
other considerations.

While the natural law school is worried of ethic and morality content of the law, the positivists are worried
about formality, i.e. that the formal procedure must be satisfied in order to have law. For the naturalist, a
proposition is law not merely because it satisfies the formal procedure but its law virtue of having some
addition moral content i.e. if it complies with the principles of natural law.

The positivists insist on the separation between law and morality for purposes of certainty. They argue that
we should be able to clearly know what is or what not law is. This is in contrast to the natural law school of
thought which insists on what out to be law. I.e. law ought to have a moral content and in compliance with
the principles of natural law. Positivists maintain that courts have no time to state the validity of law by a
moral test. The maintenance of any legal system requires political authorities to make law, enforce and
administer them to the exclusion of what other people may believe the laws should be. Societies need well
defined laws. Positivism therefore, wants order which flourishes best in stable social conditions in which the
law ‘is’ and not what it ‘ought’ to be.

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Sociological School

Another school that criticised the positivists in order to justify their own philosophy, was the sociological
school. It criticised positivists in order to justify their own explanations of what they believed as law. One of
the criticisms was that positivism did not provide for continuity when one superior dies and before another
superior takes over. They argue that since this may take time it is not clear who gives the commands in the
interim from the positivists.
The second criticism by those who support this school is that it is wrong to state that all laws must have
sanctions or threat of harm attached to it. They argue that some laws are only regulatory and merely guide
people on how they must act without necessarily threatening punishment.

Sociologists argue that laws are rules of conduct found in statutes and decided cases that actively serve
human interests. This excludes dormant or unused laws. To them a law that is habitually disregarded is not a
living law.

Historical School
This school of thought is also known as the anthropological school. The leading adherents of this school are
Hegel and Sir Henry Maine. It stresses on the importance of the historical reasons of law, as against, for
instance, statutes and precedents. It asserts law as one of the intrinsic developments in any society just like
language or economic activity. In other words proponents of this school argue that law is a natural and
spontaneous norm of a people. Sir Maine for example, argued that law was a norm of conduct freely and
instinctively formed by all reasonable members of society who agree to be bound by it. Others in this school
state that law is a manifestation of a particular spirit of a people.

In the earliest times to which authentic history extends, the law will be found to have already attained a fixed
character peculiar to the people, like their language, manner or constitution. These phenomena have no
separate existence, but are the particular faculties and tendencies of an individual people. The people’s law
grows with the growth and strengthens with the strength of the people, and finally dies away as a nation loses
its nationality

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Realist School

The realist school of thought looks to the courts as a principle movement to the making of law, and they play
down the role of the legislature. To the realist, what the judge says is law and the legislature is only a source.
Statutes only become law when they have passed through judicial interpretation. The realist asserts that you
do not know the law until the judge pronounces it. Realists argue that judges are law givers because statutes
are of general application. These words will either be vague or ambiguous. It is the judge who gives the real
meaning to a statute when presented with particular sets of facts in a given case. What courts pronounce is
the law is that at any a particular time when you want to know what the law is, you must go to the courts and
not the legislature. Hence, I conclude by stating that “statutes as far as realists themselves are concerned are
dead, until the courts put life in them.

Socialist School

The socialists have defined law as a tool of the dominant in and propertied classes for the permanent
oppression of the underprivileged social groups. This proposition is based on the opinion that politics is a
struggle for power between the privileged and the underprivileged classes in society. Adherents of this
school believe that law is made by the dominant groups in society for the protection of their appropriations
against the “have- nots” who out of envy and jealousy, are likely to interfere with their possessions.
To a socialist philosopher, therefore, law is a rule or norm which the “bourgeoisie” formulates and use as an
instrument to keep the “proletariats” at the bottom of the economic ladder.

Activity

1. Explain how law has been understood by some schools of thought

2. Critically analyse the schools of thoughts and position in your view which school does Zambia follow

Topic 5: Citation of Cases

As you study the law, there is need to look at various sources available to a student of law I buttressing their
argument. One such source is case law or judicial precedent which you need to make as reference to your
argument.

The following are a useful guide to citation of case:

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 a) Case name-this is the full names of the parties to a case.
b) Case citation- this is the correct citation of the case and includes the court deciding the case, the year
in which it was decided, the law report which published it and the page number where the judgment is
contained.
c) Parties – the parties to the case i.e., plaintiff and the defendant, appellant and respondent, petitioner
and respondent etc., should be described briefly. It is also necessary to indicate what the parties were
in the court below.
d) Facts or facts of the case – this is a story of what happened in that particular case in its entirety
e) Brief facts of the case-these are brief facts gathered from the facts which are relevant in issue and are
legal
f) Earlier proceedings – these are proceedings that are referred to by the current court as articulated in
the lower court
g) Legal issues- The are issues that are raised before the court and must be legal
h) Ratio decidendi or holding.-this means reason for deciding in such a way or the basis of the decision
i) Obiter dicta (dictum)-these are by the way statements made by the court and does not form part of
the decision
j) Court order –this is an order or decision given by the court at the end of the case. For example,
acquittal, conviction or costs

SELECTED EXAMPLES

a) Case name-Esther Mwiimbe v. The people

b) Case citation (1986) ZR 15.
c) Parties-Esther Mwiimbe and The People
d) Legal issues
The two issues before the court (i) whether cumulative provocation could be equated with and applied
in place of immediate provocation and (ii) whether similar fact evidence was applicable in the case?

e) Ratio decidendi or holding

The court held that:
i. Evidence of cumulative provocation in the absence of immediate provocation cannot suffice
to establish the three vital elements for the defense to stand i.e., the act of provocation, the loss of
self-control and the appropriate retaliation.
National Institute of Public Administration – Outreach Divisions Programmes 20
 ii. Evidence of an alleged previous attempt by an accused on the life of a victim is admissible at
the court’s discretion as similar of fact evidence provided that the court has clearly, established that
evidential value outweighs its prejudicial effects.

f) Obiter dictum
In obiter dictum, the defense was warned to raise objections that they may have to rely on the calling
of witnesses at the earliest opportunity rather than wait to appeal.
g) Court order
The appeal was dismissed

Activity

1. Explain how criminal and civil case are cited

2. Explain the names of the parties when there is an appeal
3. Discuss all the parties to a case

Topic 6: Contrast between Criminal and Civil Law

The distinction between a crime and a civil wrong is not found in the nature of the act itself but in the legal
consequences that follows it. If the wrongful act is capable of being followed by what are called criminal
proceeding then it is regarded as a criminal wrong. If it is capable of being followed by civil proceeding that
means it is a civil wrong. If it is being followed by both then it is both a crime and a civil wrong. For
example, if Joan commits a criminal wrong of assault and the civil wrong of battery.

Criminal law

A crime is regarded as a wrong done to the state. Prosecutions are conducted by the state through the
Director of Public Prosecution and the Police, an office established by article 56 of the Constitution Chapter
1 of the Laws of Zambia. The private citizens can also prosecute with the consent of the D.P.P.

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Here under criminal proceedings, the prosecutor prosecutes the defendant. If the prosecution is successful it
results in the conviction of the defendant. After the conviction, the court may deal with the defendant by
giving him a custodial sentence, e.g prison, or non-custodial sentence e.g probation

Criminal law is thus, concerned with legal rules which provide that certain forms of conduct shall attract
punishment by the state; this is because it is fit that society cannot work if people are allowed to e.g. take the
property of others at will. Therefore, theft is forbidden and thieves are punished.

The aim of criminal law is not to compensate the victim but to punish the wrongdoer through either a fine or
imprisonment. If the prosecution is successful, the accused person is liable to imprisonment or fines which
are given to the state. The parties are called the complainant and the accused.

The standard of proof in criminal trials is that the prosecution must prove the accused person to be guilty
beyond all reasonable doubt (beyond the shadow of darkness).

The case is cited as “THE PEOPLE v KAJALE DAKA (2009) Z.R. (H.C.) and on appeal “KAJALE DAKA
v THE PEOPLE (2011) Z.R. (S.C.)

Therefore, the person who has brought a case before the court is be called Plaintiff, Complainant, Claimant,
Appellant, Petitioner or a Litigant while a person to whom the action has been brought against is called the
Accused, Respondent or Defendant.

Civil Law

Civil law is concerned with compensating persons who are injured by the acts or omissions of other members
of society with the aim of reconciling the parties. Civil actions may be commenced by any person who seeks
compensation for a loss, which he suffered. The person who takes the matter to court is called the plaintiff
and he is said to sue the other party called the defendant. If the plaintiff is successful, he will be awarded
damages which must be paid by the defendant. Their purpose is to compensate the plaintiff for his loss rather
than to punish the defendant.

Civil wrongs are less serious wrongs and directly affect individuals. They may be brought by any person who
seeks compensation for loss or injury which he has suffered. The damages must be paid by the defendant.
Their purpose is to compensate the plaintiff for his loss rather than to punish the defendant.

The standard of proof in civil cases is that the plaintiff must prove the case on the balance of probability.

Examples of categories of civil law include:

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 a. Contract law
b. Property law
c. Tort law
d. Commercial law
e. Employment law
f. Company law
g. Family law

In civil cases, the actual names of the parties are named. The case will be referred to as “Musa Williams V
Butemwe Yoyo (1995) Z.R. (HC)

Some case may not have the plaintiff and a defendant. Examples include where there is an application before
the court to interpret Mr. Jack’s “will”, the case will be “Re Jack’(2014)

On the other hand, in civil proceeding, a plaintiff sues or brings an action against a defendant. If the plaintiff
is successful this leads to the court entering judgment or ordering the defendant to pay a debt owed to the
plaintiff or money in form of damages. Alternatively, it may require the defendant to transfer property to the
plaintiff or to do not to do something (injunction) or to perform a contract (specific performance). Some of
these remedies are legal and others equitable.

The distinction between civil and criminal wrong is not found in the nature of the act itself, but in legal
consequences that follow it. Thus if a taxi driver crashes he may commit:

i. A beach of contract, that is, failure to deliver the passenger to his destination
ii. A tort is negligence if he causes damage to any person or property.
iii. A crime for example dangerous driving.
In some situations, the fact will therefore indicate both criminal and civil offence and action. In such cases
the victim will not be able to have actions heard in the same court. He will have to start a civil action separate
from any prosecution brought by the state.

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 Activity

1. Explain the role of criminal law in society

2. Discuss the role of civil law in a community
3. Find the examples of these types of law and discuss how they affect society

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UNIT 2: SOURCES OF LAW
Learning Objectives

At the end of this unit, you should be able to:

 To explain the meaning of sources of law

 Explain the sources of making law
 Explain literary, formal and historical sources of law
 Distinguish parliamentary from delegated legislation
 Discuss the principle of overruling and reversing decisions
 Explain a decision made per incuriam

Topic 1: Sources of Law in Zambia

Law may be classified by reference to its source, i.e. this means the way the law came into existence. The
words sources of law have several meanings attached to them. It may mean some historical origins from
which the law has come such as common law and equity. Additionally, it may mean a body of rules which a
judge will draw upon in deciding a case.

There are about 3 sources known at law which are:

1. Literary sources: those that are written down in Acts of Parliaments and can be physically referred to.
2. Formal sources : These are formal sources of law that normally describe the authority which gives
force to the rules of law that govern a certain society or state for example, those that come from the
King or a Queen
3. Historical sources: these are laws established a long time ago and has an effect of historical aspect
like the common law and customs

Parliamentary Legislation

Literary sources describes were the law is physically found. For example, the law is found in statutes and or
law reports.

Legislation is the most important literary source of law at the present day. Statutes or Acts are passed by
Parliament which is the supreme law making body in Zambia. Parliament has power to pass any law
provided it does not go against the constitution. In practice, statutes often amend and sometimes abolish
National Institute of Public Administration – Outreach Divisions Programmes 25
established rules of common law or equity, overrule the effect of the decision of the courts or make entirely
new law on matters which previously have not been the subject of legislation. There are 2 types of legislation
namely Parliamentary and delegated legislation. Through the legislative process, Acts of Parliament start
their life as bills which are proposed legislation. Bills are either brought by government through the relevant
ministers or can be proposed by ordinary members of Parliament hence they are known as private members
bill. The stages a bill goes through in Parliament before it becomes law are called readings and after the third
reading it goes to the President for assent or veto.

Stages/Readings through which a bill must pass before it becomes law

Margaret Munalula, in her book entitled Legal Process in Zambia outlined the stages as follows:

First reading:

The first reading of a bill is when a minister or a member presenting the bill introduces it to the entire house.
The presenter simply reads out the title of the bill and there are no debates on the bill at this stage by the
members.

Second Reading

The bill is then debated in detail under the second stage. The presenter of the bill gives details of what the
bill is all about it and what it intends to do. Members of the house then debate the bill either supporting or
opposing it. They indicate what changes or additions they would like to make to the bill.

Committee Stage

The committee stage is when the bill is considered either by the committee of the Whole House or a
specialized committee of a few members. The committee examines the bill in detail, clause by clause.
Members are free to make amendments to the bill. The purpose of this stage is to perfect the bill in terms of
content, purpose, language and punctuation to ensure that the ideas contained therein are properly expressed.
Here, you find technocrats or experts who look into the bill in detail.

Report Stage:
At this point, the committee that considered the bill reports back to the Whole House on the works done on
the bill. Members are free to make further amendments during the report stage of the bill. This stage becomes
noticeable in the process only if the bill has been amended at Committee stage. If the bill has not been
amended at committed stage, this stage is by-passed.
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Third Reading
From the committee stage the bill is then read to the House. This is also noted to be the final stage that the
bill is looked at in the House and if satisfied that the bill has been properly handled or dealt with, it is sent to
the next stage.

Presidential Assent or Veto

After the bill has been passed by the house, it has to be presented to the President for assent. The President
signs the bill and it becomes law immediately or at a later date depending on what the bill itself states. A
signed bill is called an ‘Act of Parliament’. If the President withholds assent or vetoes the bill, the bill has to
be sent back to National Assembly with recommendations. National Assembly has 2 options after receiving
the bill. The first one is that the house can re-consider the bill by looking at the recommendations given by
the President and then send it back to the President. If the President signs the bill, it becomes an Act of
Parliament. The second option the house has is to refuse to consider what the President has recommended.
They then send the bill as it came from the President without changing anything. Then the bill is taken to the
President and it must be noted that the President has 21 days within which to sign the bill. If the President
does not sign the bill within 21 days, the President must dissolve Parliament and call for fresh Presidential
and General Elections. This is articulated under Article 78 of the Zambian Constitution, Chapter 1 of the
Laws of Zambia.

Delegated Legislation

Delegated legislation comes into being when Parliament confers on persons like ministers or bodies power to
make regulations for specified purposes. This is done through what is known as an enabling Act or Parent
statute which authorises them to do so. Article 80 of the Zambian Constitution provides that nothing in
Article 62 shall prevent Parliament from conferring on any person or authority power to make statutory
instruments. . They delegate to make law and also delimit their power. It must be noted that delegated
legislation must be in conformity with the parent Act or it may not be given effect.

Types of Delegated Legislation

Statutory instruments

These are laws made in form of rules and regulation usually, by a Minister in charge of a particular
Government Ministry or Department. It is normally restricted to specific issues or matters pertaining to that

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respective Ministry. For example, the Minister in charge of industrial and labour relations has time and again
issued SIs to revise the minimum wages and conditions of service for employees.

By-laws

By laws are rules made by local authorities like district councils. Their operations are restricted to their
locality. They are provided for under the Local Government Act, one of the fundament functions of local
authorities is to pass laws for maintenance of social order in their respective domains of jurisdictions. It must
be noted that Local authorities are under obligation to ensure that they pass By Laws that are reasonable and
in conformity with other existing written laws as it was stated in William Kasonso v Ndola City Council
(1997) S.J. 58 (S.C.).

Orders in Council

These are rules of the Supreme Court governing the procedure in the High Court made by a special
committee.

Rules and Regulations

Rules and Regulations are delegated laws made by specialised organs of the Governemnet as per
Parliamentary delegation. They normally deal with procedural matters of how to enforce the substantive
provisions of an Act after enactment by Parliament. For example, under section 41 of the Anti- Gender
Based Violence Act, No. 1 of 2011, the Act vests powers in the Chief Justice to formulate Rules and
Regulations on how to enforce the said Act with respect to litigation thereon.

Standing Orders
Standing Orders are rules of engagement formulated by a group of persons to govern their internal
interactions as they conduct business to the exclusion of others. In the case of Chikuta v Chipata Rural
Council (1974) Z.R. 241, it was elucidated that Standing Orders of a particular local authority govern only
the relationship among councilors of that particular local authority and not outsiders; with the Minister in
charge of Local Government held to be amenable thereto as he is not an outsider.

Circulars
With regards to Circulars, where there is no any other written law, Government policy pronouncements and
guidelines in form of circulars may resume the force of law and be enforced as such. In such situations they
may serve as a valid source of law.

Advantages of Delegated Legislation

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 1. It saves Parliamentary time in that ministers are left, with the civil service, to make its detailed rules,
Parliamentary concerning itself solely with the broad frame work of the legislation.
2. It is speed. The Parliamentary procedure for enacting bills is slow whereas rules and orders can be
put more rapidly into law, particularly in a time of national emergency.
3. It enables experts to deal with local or technical issues. The aptitude of the legislature is limited and
experts in the department of the state can better advice a minister on the technicalities of a certain
branch of law.
4. Delegated legislation is less rigid in that it can be withdrawn quickly, if it proves in practicable by
another statutory instrument
5. It provides flexibility in that regulations can be added to or modifies from time to time without
enacting a new act of Parliament.

Disadvantages of Delegated Legislation

A. Parliamentary control of legislation is undoubtedly reduced. However, the power to make delegated
legislation must be given by an Act of Parliament (sometimes refer to as the enabling statute). And
so Parliament is to that extent in broad control because it must pass the enabling statute.
B. It is said that there is too much delegated legislation so that it is so difficult to know what the law is,
particularly in view of the fact that little publicity is given to statutory instrument whereas most vital
acts of Parliament as referred to from one point to another at the press.
C. Law making is taken out the direct control of elected representative and is placed in the hands of
employees of government department making it less democratic.
D. he dangers of sub delegation are on occasions quite real. One can find in some cases or pedigree of
four generations of instruments emanating from a statute as follows;
i. Regulations made under a statute
ii. Orders made under the regulations
iii. Directions made under the orders
iv. Licenses issued under the directions

When this happens it does reduce very seriously the control by Parliament of the making of new laws since
Parliament would only see the parent statute and the first set of regulations.

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Control of Delegated Legislation

Judicial Control

If a minister, government department or council exceeds its delegated power its action will be held by the
court to be ultra vires (beyond the powers of) and therefore void.

Parliamentary Control

Parliament having given the power to legislate can take power away at a future date. Ministers are usually
answerable to Parliament for the content of regulations made by their department. Sometimes an Enabling
Act will require that an instrument be laid before Parliament thereby permitting Parliament to debate. There
is also a Parliamentary committee which examines and reports to the rest of the house the various delegated
legislation.

Case Law-Judicial Precedents

A precedent is defined as a practice by which the courts decide cases on the basis of principles established in
prior cases or legal principles to the case under consideration.
It must be noted that since Zambia is a common law jurisdiction, it has adopted many English court
practices. For proper existence of the doctrines of precedent there must be a settled judicial hierarchy for this
is the only way of knowing whose decisions bind whom. Fortunately, in Zambia the judicial hierarchy is well
established and settled. There also has to be an efficient system of law reporting, this is however an area that
needs to be improved in Zambia.

Therefore, judicial precedent means the process whereby judges follow previously decided cases where the
facts are of sufficient similarity. The doctrine of judicial precedent involves an application of the principal of
stare decisis. The maxim when loosely translated means 'stand by what has been decided and do not disturb
what has been established'. The principle of ‘stare decisis' is a clear and important feature of our legal
system. It is supported on the basis that it leads to fairness in that, like cases are to be treated in a similar
way. It is also justified on the basis that it ensures that the law is clear and certain.
This may be so but there are those who may say that such a rigid system can in itself lead to unfairness when
the law cannot accommodate the needs of individuals who are subjected to harsh decisions which do not
provide them with a remedy.

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The principal in judicial precedent involves a system whereby a court is bound by the decisions of another
court which is above it in the judicial hierarchy, unless they can reasonably distinguish between them.
Judicial precedent can also be defined as a judgement or decision of a court, normally recorded in a law
report, Z.R Zambia Law Report, used as authority for reaching the same decision in subsequent cases. The
doctrine of judicial precedent is based on the general principal that once a higher court has stated a legal
position in a given situation then the same decision will be reached in any future case where a lower case of
material facts are the same. The rationale behind precedent is the view that it is not the function of the judge
to make law but to decide cases in accordance with existing rules.

The following are the advantages and disadvantages of judicial precedent:

Advantages

1. Consistency
 Bring consistency to the Zambian legal system
 Case with similar facts will be treated in the same manner
 Prevents judges making random decisions
 Promotes justice and equal treatment
 Law remains the same, which helps people plan their affairs

2. Predictability
 Lawyers are able to advise their clients with some degree of certainty
 Predictability is important in determining who should qualify for
Government help in funding their legal action

3. Flexibility
 Judges can develop the law – e.g. overruling an out-dated precedent

4. Detailed Practical rules

• There is a wealth of detail contained in the reported cases. The principles set out in the cases are a
response to real-life situations which have occurred and can be a guide to future litigants

5. Original Precedents

 The doctrine allows for new or ‘original’ precedents to be created

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  An original precedent makes legal provision on a matter for which there was previously no law
 For example, in Gillick v West Norfolk and Wisbech Area Health Authority (1985) – the
Court deciding on whether girls under 16 could be prescribed contraceptives without parental
consent. This issue had never arisen before

Disadvantages

1. Complexity
 Judgements can be complex and it can be hard to decide the ratio decidendi of a case
2. Volume

 It is difficult to research the law

 Hundreds of judgements are made every year
 This means someone may have to sift through many volumes of laws and law reports
3. Uncertainty
 By using the mechanism of distinguishing cases and other methods of departure, the judges can
avoid following precedents. This causes uncertainty as to how cases will be decided
4. Rigidity

 An unjust precedent can lead to further injustices. E.g. once the Supreme Court sets an unfair
precedent, it cannot be overruled unless and until another case of similar fact goes to the supreme
court on appeal. This might not happen for many years
 The law may be out of date and need modernising
 Judges can be reluctant to change the law

5. Unconstitutional

 It is often argued that judges are overstepping their constitutional role by actually making the law
rather than simply applying it
 It is the role of Parliament to create law and the role of the judiciary to interpret it.

6. Undemocratic

 Only persons who are elected, that is, the Government and MPs should be able to create law. The
judges are not elected and should therefore not engage in law-making.

7. Lack of Research
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  Unlike legislation which is made with the benefit of research by interested and knowledgeable
bodies, there is no opportunity for the judge to commission research or consult experts on the
likely outcomes of their decisions.
 Judges make their decisions based on the arguments they hear before them in the courtroom.

Therefore, for the principle of precedent or stare decisis to be followed, the following requirements must be
satisfied:

a. the facts of the cases must be the same

b. there must be superiority of courts and;
c. the case must have a ratio decidendi.

If these requirements are met the current court is bound to apply the rule of law stated on the earlier
judgment.

Binding Precedent

Binding precedent means a precedent or an existing law that courts are bound to follow. For example, a
lower court is bound to follow an applicable holding of a higher court in the same jurisdiction. Such
precedents are also termed authoritative precedent or binding authority.

Such precedent exists within common law jurisdictions that recognize judicially made law. Generally,
binding precedents follow the doctrine of stare decisis, which means ‘stand by previous the decision.
Zambia, as a state also follows this type of system.

Binding precedent refers to existing law that must be followed. Such precedent exists within common
law jurisdictions that recognize judicially made law. Generally, it follows the doctrine of stare decisis, which
means "maintain what has been decided and do not alter that which has been established.

Binding precedent is where previous decisions must be followed. This can sometimes lead to unjust
decisions.

Persuasive precedent

Persuasive precedent means precedent which a judge is not obliged to follow, but is of importance in
reaching a judgment, as opposed to a binding precedent. Persuasive precedents assist the decision maker in
determining a case. Decisions of lower courts and foreign courts can be persuasive precedents.
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These are statements that a later court will respect but need not to follow. There are several kinds of
persuasive precedents, some include the following;

1. Obiter dicta: remarks of a judge which are not necessary to reaching a decision, but are made as
comments, illustrations or thoughts. Generally, obiter dicta are simply dicta. These are by the way
statements made by the judge in the course of judgment and do not form part of the judgment. Types
of obita dicta include,

a. A statement based upon facts which were not found to exist

b. Statement which although based on facts as found does not form the basis of the decision.

2. Ratio decidendi: this is simply the reason for deciding in a particular manner and it determines the
reason for a case.

Overruling

A higher court can overrule a decision made in an earlier case by a lower court e.g. the Court of Appeal can
overrule an earlier High Court decision.

Overruling can occur if the previous court did not correctly apply the law, or because the later court
considers that the rule of law contained in the previous ratio decidendi is no longer desirable.

Precedents can be overruled either by statute or by a superior court. Judges are usually reluctant to overrule
precedents because this reduces the element of certainty in the law.

However, it sometimes happen that a case has been decided by following a previously decided case, the
judge having followed precedent. A decision is overruled when a judge in a different case states that the
earlier case was wrongly decided. When a decision is overruled, it ceases to exist as precedent though the
status of the parties to that particular case in which it was set remains unchanged.

Overruling affects precedent but does not reach back to affect the parties in the original case, now regarded
as wrongly decided and it is not necessary for example, a successful plaintiff to return his damages.

Furthermore, the case could not be tried again because the doctrine of “Res Judicate”(a matter which has
been adjudicated on) protects defendants against a multiple of actions in regards to the same issues.

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Reversing

Reversing is the overturning on appeal by a higher court, of the decision of the court below that hearing the
appeal. The appeal court will then substitute its own decision.

It can therefore be summarized on this topic that it often happens that when a case has been decided in the
High court a decision is taken to appeal to an appellant court. The Court of Appeal will re-examine the case
and if it comes to a different conclusion from the judge in the High court, it reverses the decision. Reversal
therefore, applies to a different decision of the appellant court in the same case. In this case, the status of the
parties is also reserved to their original position before the case went to court. Hence, reversal affects the
parties who are bound by the decision of the appellant court and it affects precedent because lower courts
will in future be bound to follow the decision.

Activity

1. Distinguish literary, formal and historical sources of law

2. Discuss how a bill becomes law
3. Discuss the distinction between parliamentary legislation from delegated
legislation and state its advantages

Topic 2: Per Incuriam

A decision which is reached per incuriam is one reached by carelessness or mistake, and can be avoided.
InMorelle v Wakeling[1955] 2 QB 379, Lord Evershed MR stated that "the only case in which decisions
should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of
some inconsistent statutory provision or of some authority binding on the court concerned".

In Secretary of State for Trade and Industry v Desai (1991) The Times 5 December, Scott LJ said that to
come within the category of per incuriam it must be shown not only that the decision involved some manifest
slip or error but also that to leave the decision standing would be likely, inter alia, to produce serious
inconvenience in the administration of justice or significant injustice to citizens.
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In Davis JokieKasote V The People (1977) Z.R. 75 (S.C.), the Supreme Court stated that the principle of
stare decisions is essential to a hierarchical system of courts. Such a system can only work if, when there are
two apparently conflicting judgments of the Supreme Court, all lower courts are bound by the latest decision.
Nevertheless, the Supreme Court being the final court in Zambia adopts the practice of the House of Lords in
England concerning previous decisions off its own and will decide first, whether in its view the previous case
was wrongly decided and, secondly, if so, whether there is a sufficiently strong reason to decline to follow it.

The Hierarchy of Court and Precedents

It must be noted that broadly speaking, a court is only obliged to follow the decisions of courts at a higher or
the same level in the court structure. This can be show as follows:

Subordinate Courts
Decisions of the subordinate courts are rarely reported outside the pages of local newspapers but even if they
were reported they would not constitute precedents binding on anyone. Magistrates presiding over these
courts cannot bind themselves although it is expected that an individual magistrate will attempt to be
consistent in his or her own decision making. However, these courts are bound by the decisions of higher
courts like the High Court and Supreme Court.

High Court
Under the High Court, a decision of a judge is binding on all the inferior courts, but not technically on
another High Court judge. In practice High Court judges are reluctant to depart from the decisions of other
High Court judges. However, it has been stated that where there are conflicting decisions of judges of a
subordinate jurisdiction, the later decision should be preferred, provided that it was reached after full
consideration of the first decision.

Supreme Court
The decisions of the Supreme Court is binding on the High Court judges as well as the Industrial Relations
Court, subordinate courts , local courts and all other inferior courts as established by the law.

Therefore, it should be noted that the Supreme Court is bound by its own previous decisions no matter what
unless on the following conditions:

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i) Where there are compelling reasons to depart from its earlier decision
InAbel Banda Vs The People (1986) ZR 105, the Supreme Court had an issue in following its precedent
set in Chibozu and Another v The People (1981) Z.R. 2. In this case the court stated that it had already
pointed out that Chibozu was wrongly decided and the next question for them was to consider whether
there was sufficiently strong reasons for us to decline to follow the decision in that case. The court further
said it is our considered view that justice was not served in Chibozu because the symbolic scales of justice
was mean that just as an accused person should not be convicted unless there is sufficient and cogent
evidence proving his guilt beyond reasonable doubt, the State also should not be made to lose a case
unless the evidence it adduces cannot, in law, support a conviction; that way the scales are balance. On
this basis we come to the conclusion that sufficiently strong reason does exist to warrant the overruling of
Chibozu on the basis that it is a non sequitur. We therefore hold that Chibozu is no longer good law to the
extent considered in this judgement and it is therefore overruled. It was held that in order to have certainty
in the law, the Supreme Court should stand by its past decisions even if they are erroneous unless there is
a sufficiently strong reason requiring that such decisions should be overruled. Therefore, Chibozu and
Another v The People overruled.

ii) Where a decision of the Supreme Court was made perincuriam

A decision given per incuriam means a decision given in ignorance or forgetfulness of some inconsistent
statutory provision or of some authority binding on the court concerned, so that in such cases some part of
the decision or some step in the reasoning on which it is based is found, on that account to be
demonstrably wrong”.
Therefore, where the Supreme Court is faced with previous conflicting decisions of itself, the court is at
liberty to choose to choose which decision to follow.
This is almost the same position with the British jurisdiction. In the English case of Young v Bristol
Aeroplane Co Ltd [1944] 2 All ER 293, the court stated that:
“…on a careful examination of the whole matter we have come to the clear conclusion that this court
is bound to follow previous decisions of its own as well as those of courts of co-ordinate
jurisdiction.”

Hence, the court averred that the only exceptions to the above rule are:
(i) The court is entitled and bound to decide which of two conflicting decisions of its own it will follow.

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(ii) The court is bound to refuse to follow a decision of its own which, though not expressly overruled,
cannot in its opinion stand with a decision of the House of Lords.
(iii) The court is not bound to follow a decision of its own if it is satisfied that the decision was given per
incuriam.

Activity

1. Elaborate on decision that are made per incuriam and state the elements
2. Discuss the importance of the decisions of the cases of Abel Banda Vs The People
(1986) ZR 105 and Chibozu and Another v The People (1981) Z.R. 2

Topic 3: Distinguishing, Reconciling and Disapproving

Distinguished

A case is distinguished when the judge states that the material facts are sufficiently different so as to apply
different ruler of law. What is reasonably distinguishable depends on the particular cases and the particular
court - some judges being more inclined to 'distinguish' disliked authorities than others.

In Jones v Secretary of State for Social Services [1972] AC 944, Lord Reid stated:

"It is notorious that where an existing decision is disapproved but cannot be overruled courts tend to
distinguish it on inadequate grounds. I do not think that they act wrongly in so doing, they are adopting the
less bad of the only alternatives open to them. But this is bound to lead to uncertainty"

Reconciling

A case is reconciled when the judge finds that the material facts of both cases are so similar that he can apply
the same rules of law. Here, the same principle will be applied to the later case.

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Disapproved

A case is disapproved when a judge without overruling an earlier case, gives his opinion that it was wrongly
decided or that the facts are generally different.

Activity
i. Explain how the following terms are used before the courts of law:
ii. Distinguishing
iii. Reconciling
iv. Disapproving

Topic 4: THE JUDGES' ROLE IN PRECEDENT

The old view of the judges' role was that they were merely 'declaring' the existing law which is called
declaratory theory. Lord Esher stated in Willis v Baddeley [1892] 2 QB 324:

"There is … no such thing as judge-made law, for the judges do not make the law, though they
frequently have to apply existing law to circumstances as to which it has not previously been
authoritatively laid down that such law is applicable."

On the other hand, the modern view is that judges do make law. Radcliffe said:

"… there was never a more sterile controversy than that upon the question whether a judge
makes law? Of course he does. How can he help it?"

Hence, reality is that judges are continually applying the existing rules to new fact situations and thus
creating new laws.

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Recent Examples of Judicial Law-Making

In Gillick v W. Norfolk Area Health Authority [1985] 3 All ER 402, the House of Lords was asked to
consider whether a girl under sixteen needed her parents' consent before she could be given contraceptive
services. One side claimed that teenage pregnancies would increase if the courts ruled that parental consent
was necessary, and the other side claimed that the judges would be encouraging under-age sex if they did not.
The House of Lords held, by a majority of three to two, that a girl under sixteen did not have to have parental
consent if she was mature enough to make up her own mind.

It must be noted here that since Parliament had given no lead, the House of Lords had no option but to make
a decision one way or the other.

In Re S (Adult: refusal of medical treatment) [1992] 4 All ER 671, a health authority applied for a
declaration to authorise the staff of a hospital to carry out an emergency Caesarian section operation upon a
seriously ill 30 year old woman patient. She was six days overdue beyond the expected date of birth and had
refused, on religious grounds, to the operation. The evidence of the surgeon in charge of the patient was that
the operation was the only means of saving the patient's life and that her baby would not be born alive if the
operation was not carried out. Stephen Brown P, made the declaration sought, in the knowledge that there
was no English authority directly on the point. There was however, some American authority which
suggested that if this case was heard in the American courts the answer would likely have been in favour of
granting a declaration in these circumstances.

In Pepper (Inspector of Taxes) v Hart [1993] 1 All ER 42, the House of Lords allowed the use of Hansard
as an extrinsic aid to the interpretation of statutes subject to certain conditions. In doing so their Lordships
declined to follow dicta in three of their earlier decisions.

Additionally, in Airedale NHS Trust v Bland [1993] 1 All ER 821, the House of Lords considered the fate
of a football supporter left in a coma after the Hillsborough stadium disaster. The court had to decide whether
it was lawful to stop supplying the drugs and artificial feeding that were keeping the patient alive, even
though it was known that doing so would mean his death soon afterwards. The majority Lords made it plain
that they felt that cases raising wholly new moral and social issues should be decided by Parliament, the
judges role being to apply the principles which society, through the democratic process, adopts, not to
impose their standards on society. Nevertheless the courts had no option but to make a decision one way or
the other, and they decided that the action was lawful in the circumstances, because it was in the patient's
best interests.

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Formal Sources

The formal sources of law normally describe the authority which gives force to the rules of law that govern a
certain society or state as a whole. This will emanate from a State or a King in a kingdom.

Activity

1. Elaborate on the Judges decision and its effect

2. Do judges make law? Discuss

Topic5: Historical Sources

Since Zambia is a former British Colony, most of her law is based on English law. The historical sources are
generally are common law and equity, although the term may be used to refer to reasons behind the creation
of the law.

The Common Law

The year 1066 was a watershed date in the history of Common law. Before 1066, there existed a primitive
legal system based on local customs. During the 1066 era, William, the Duke of Normandy conquered
England. The effect of the Norman Conquest was to set in motion the unification of these local customs into
one system of law with the King as the head. The system was common to all men and for this purpose it was
called “Common law”. The King would go round the country together with his itinerant judges to hear
disputes throughout the land based on local custom. This was done through the “Curia Regis” or King’s
court. In spite of being called a court, it had legislative, administrative and judicial functions. It consisted of
the King and his tenants-in-chief who were men to whom land had been granted in return for the service such
as the provision of men or arms.

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Defects of the Common Law

The writ system

A writ was a sealed letter issued in the name of the King and it ordered some people to do whatever it
specified. Writes were issued by the clerks in the chancellors’ office. The chancellors in those days were
clergy men of high rank who were also the Kings Chaplain and head of Parliament. In order to bring an
action in one of the King’s court, the party wishing to do so had to obtain from the chancery a writ for which
he had to pay. Any writ which was novel or different because the plaintiff or his advisers had tried to draft it
to suit his case was thrown out. Hence, writs were only issued in a limited number of cases and if the
complainant could not be fitted within the four corners of the existing writs, no actions could be brought.

Procedure

Procedure was one of the difficult issues that arose in the common law courts because even the most trivial
error in the writ would avoid the action. For example, if Mr. Williams Carter complained of the trespass of
Mr. Francesco Polly’s Cow and in the writ by an error it states pigs, then the action will be thrown out and
the case to restart from the beginning.

Wager of law
Additionally, some cases were tried by a system called “wager of law”and the plaintiff might fail on what
was really a good case because the defendant had more witnesses. This resulted into people becoming
professional witnesses for hire.

Defences and Corruption

There were certain defences which could be pleaded under the common law and could delay the plaintiff’s
case. For example, one could claim that he is sick and this would delay the case for a year or so. The
defendant would also say that he was cut by the floods or a broken bridge. Earlier, such defences were
verified by sending Knights to see the defendant but later this was not done and these defenses were used to
delay good claims. There were also complaints of bribery, corruption and oppression by judges.

Remedies
The common law lacked on proper remedies. The only remedy which was available at common law for a
civil wrong was damages. This was the payment of money which was not in all cases adequate. For example,
if Musa trespasses each day on Butemwe’s land, Butemwe is unlikely to be satisfied with damages. Hence,

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she would rather stop Musa from trespassing which equity could do by a remedy called injunction. The
common law could not compel a person to perform his obligation or seize to carry on a wrong.

Trusts and Mortgage

The common law did not recognise the concept of the trust and there was no way of compelling the trustee to
carry out his obligations under the trust. Therefore, if Peter conveys his property to Mirriam on trust for
Chewe, Mirriam could treat the property as her own and common law would ignore the claims of Chewe. In
addition, the main right of the mortgagor is the right to redeem or recover the property he has used as a
security for the loan. Nonetheless, at common law, the property became that of the mortgagee (render) as
soon as the decided date for payment has passed.
On the other hand, equity regarded a mortgage as an essential security and gave the mortgagor the right to
redeem the property even after the agreed common law date has passed. This rule still exists and it is called
“equity of redemption”.

Equity
Equity evolved as a means of mitigating the harshness of the common law. It was not a substitute of the
common law but rather complemented it. Hence, people who were not satisfied with the common law would
petition the King as the “fountain of justice” who could exercise royal prerogative as he thought fit. The King
determined the petition at first but later delegated his functions to the chancellors who were clergymen who
influenced decisions. Later on, another court called the chancery court was formed. Its main aim was for
“equality and good conscience” in deciding cases. At first there were no rules on how the courts would
proceed but gradually the courts began to be guided by its own previous decisions and formulated general
principles known as “maxims of equity” upon which the courts would proceed. The maxims included:
a. He who seeks equity must do equity
b. He who comes to equity must come with clean hands
c. Equality is equity
d. Equality looks at the intent rather than the form

Some of the improvements brought by equity were:

1. Commencement of the actions by petition rather than the writ in which claimant merely outlined his
claim.
2. Introduction of new remedies

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 a) Injunction-this was an order of the court compelling or restraining the performance of an act.
b) Specific performance- this is an order of the court compelling a person to perform an obligation
existing under a contract.
c) Rectification the alteration of a document so that it reflects the true intention of the parties.
d) Rescission- this is the restoration of the parties to a contract to their pre-contracts state of affairs.
3. It introduced new rights under the trust.

English Statutes

English law cases, principles of equity originally applicable in the English Chancery courts, as well as
selected English statutes are applicable in Zambia. This may be termed as the ‘reserve law’ resorted to fill in
gaps in local legislation and case precedents.

The application of English law is determined by Act of Parliament as follows:

1. The English Law (Extent of Application) Act Chapter 11 of the Laws of Zambia

This is an Act to declare the extent to which the Law of England applies in the Republic.

Subject to the provisions of the Constitution of Zambia and to any other written law as follows-

i. The Common Law

ii. The doctrine of Equity
iii. The statutes which were in force in England on the 17th August, 1911 being the commencement of the
Northern Rhodesia Order in Council,1911 and
iv. Any statute that of later date than that mentioned above in England, now applied to the republic or
which hereafter shall be applied thereto by any Act or otherwise shall be in force in the republic.(as
amended by Act no. 24 of 1973 and 1991)

The English law (extent of application) (amendment) Act No. 14 of 2002

Amends s.2 of the principle Act by the insertion of paragraph (e) which reads ‘the Supreme Court Practice
rules of England in force until 1999: provided that civil court practice 1999 (the Green Book) of England or
any other court practice rules issued after 1999 in England shall not apply to Zambia except in matrimonial
causes.’

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The British Act extension Act Chapter 10 of the Laws of Zambia

An act to provide for the extension or the application of certain British Acts to Zambia; and to provide for
amendments to certain British Acts in their application to Zambia.

1. The Acts of Parliament of the United Kingdom set forth in schedule shall be deemed to be of full
force and effect within Zambia.

Example on the Application of Chapter 11 of the laws of Zambia.

The People v Shamwana and Others (1982) ZR

The accused were charged with treason. Among the issues that were raised was whether the law applicable to
the offence was by virtue of the English law (Extent of Application), the English Treason Act of 1795. The
High Court ruled that, ‘the English law(Extent of Application) Act, Cap 4 is an Enabling Act in that in the
absence of any legislation in Zambia on any subject, English statutes passed before 17thAugust will apply.
Where Zambia enacts an Act with similar provisions to an English Act, the Zambian Act is used and not the
English Act. The law applicable therefore is the Zambian Act No. 35 of 1973.’ The accused were convicted
accordingly.

Customary law

African customary law has been noted to be the oldest law on the continent. In other words, this is the most
primitive source of law. Customs are traced back to the English legal systems were they were relied upon by
the courts in that country in making their decisions. As time went on, however, the accumulation of cases
decided by the courts themselves created precedents which the courts followed. In a very real sense, law
became the custom of the courts.

Even today, customs has its effect in that where the law is silent on an issue, a custom of a community can
fill the gap. One specific application of this principle is in the interpretation of contracts where custom is
commonly used to define specialized words and to imply unexpressed terms.

Concept of Customary law

Customary law is the oldest form of law known to man. In primitive communities almost the whole of the
law existed in shape of customs. The people regulated their conduct according to rules which they and their
ancestors had been accustomed to observe in the past. These rules were not recorded in writing, nor were
National Institute of Public Administration – Outreach Divisions Programmes 45
they enacted by any sovereign, but they became binding in the course of ages through their observance by the
community itself.

Margaret Munalula, in her book “Legal Process in Zambia”, exposes that the requisites to make a custom
legally binding are four in number, namely that the custom is reasonable, has been long established, has been
uniformly observe, and is certain.

Proof of custom

If in case before the court one of the parties alleges that the rights of the parties are regulated by a custom or
a trade usage, the onus is on him to prove the existence of the custom; on his satisfying the court that all the
essentials just mentioned are present, the court will declare the custom proved, with the consequence that it
has the force of law.

Number of Witnesses

The first requisite is to prove with certainty the actual terms or provisions of the custom. For this purpose a
turbatestium, that is, a substantial number of witnesses, is necessary. Some of the Roman-Dutch jurists
thought that there should be not fewer than ten witnesses, but it has now been laid down that the actual
number may vary with the character of the witnesses and the nature of the custom.

Reasonableness

The requisite of reasonableness is very important and is always carefully scrutinized by the court. Thus, they
held a custom to be reasonable where it was designed to prevent disputes among person engaged in finishing,
but as unreasonable, and therefore invalid, an alleged custom so entirely in favour of one party as to be
fundamentally unjust to the other. It is clear that a custom cannot be reasonable if it is injurious or
oppressive. Nor may a custom be contrary to the express provisions of a statute.

Time of observance

The period of time that must elapse before a custom may be regarded as established must be fairy long, and
the period of prescription has been suggested, but all that is necessary is that the custom must have existed
for a sufficient length of time to have become generally known.

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Modern Approach

Today, customs play an important role in most legal system including Africa and among notable states like
America, Britain, and in Zambia.

The Zambian legal system does administer Customary Laws. It has embraced both the Common Law system
and the Customary Law system. Therefore it has a Dual Legal System.

Customary law is controversial in that it has not been accepted by jurists. Some of the reasons for this claim
are that its application may be limited to a particular group of people; that it is not certain and that generally
inadequate to regulate modern relations. Often it is subjugated to the national law. However, it remains an
important part of the Zambian legal system and, as in any other African country; it dominates family and
personal relations. Some countries have even gone so far as to codify it in an attempt to make it more fully
‘law’.

Customary laws could be defined as rules of conduct which are obligatory on those within its area of
application or scope. Additionally, a custom is simply defined as a conduct or a behaviour which has attained
the force of law.

In Zambia, the application of customary law is dependant on with it not repugnant to natural justice or
morality or incompatible with the provisions of any written law.

Applicable to the Area

It must be noted that the application of customs is dependant on a particular country and on the specific
cultural group. It must be stated that you may have one state with different cultural groups. For example,
Zambia as a whole has about 72 ethnic grouping with their own custom they believe in. Note that a custom
for example, “muganda” which is “circumcision” in North Western province is most prominent and
respected but if you take the same custom to Eastern province, it may be deemed as improper. There other
customs that allow to marry more than one wife others do not. This simply means that all customs are
defendant on the area of application. Nevertheless, whatever custom that may be practiced in Zambia must
satisfy certain conditions as will be shown below and must not contradict written law, morality or natural
justice.

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Proof of Existence
Before an alleged custom is to be incorporated into law it must be proved to exist in a legally constituted
court. Blackstone a British scholar stated in 1765, that a person who alleges the existence of a custom must
prove its existence by satisfying the following test:

Antiquity

A local custom must have existed since time “immemorial”. This has been fixed by statute at 1189, the first
year of reign of Richard I. In practice, proof, back to 1189 is never possible, so the court will accept proof of
existence within living memory. If this is shown the person denying the existence of the custom must prove
that it could not have existed in 1189. In Simpson v Wells (1872), Simpson who had been charged with
obstructing a public footway, by setting up a refreshment stall, alleged that he had a customary right to do so
deriving from “statute sessions” (ancient fairs held for the purpose of hiring servants). It was shown that
statute sessions were first authorized in the first century so that the right could not have existed in1189.

Continuity

The right to exercise the custom must not have been interrupted. This does not mean that the custom itself
must have been continuously exercised. In Mercer v Derme 1905, D owned a section of a beach and wished
to build on it. P, a fisherman claimed a customary right to dry his net on the beach and asked for an
injunction to prevent the building. D’s defense was that the custom was only exercised occasionally, and that
before 1799 the beach ground was below the high water mark and until recent times was unstable for use for
use of drying nets. It was held that the custom was proved and the fluctuation in use was due to variation in
wind and tide. However, the fisherman has always claimed the right to use such ground as was available, and
so the custom extended is the additional ground now available.

Peaceable Enjoyment

A custom can only exist by common consent it must not have been exercised by the use of force, secrecy, or
permission. Subjects must enjoy their customs without due influence

Obligatory Force

Where a custom imposes a specific duty, that duty must be compulsory, and not voluntary. Blackstone said
“A custom that all the inhabitants shall be rated towards the maintenance of a bridge will be good, but a

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custom that everyman is to contribute thereto at his own pleasure is ideal and absurd, and indeed no custom
at all”.

Certainty

The limits of a custom must be certain. A custom which is uncertain cannot be enforced at law. Hence,
certainty is vital subjects knows or should know their custom and what it entails.

Consistency

Customs are by their nature inconsistent with common law, but they cannot, in a defined locality, be
inconsistent with one another. This also include that a custom should not be inconsistent with written law.

Reasonableness

A custom must be reasonable. In Day v Savadge (1614), a custom which allowed an Officer of the City of
London cooperation to certify which customs were valid in matters in which the corporation was interested
was held to be invalid because it was unreasonable. A custom cannot be reasonable if it conflicts with a
fundamental principle of the common law. In Wolstanton V Newcastle – Under – Lyme Co.1940, the
alleged custom allowed the landlord to undermine and remove minerals from his tenants land without paying
compensation for buildings damaged as a result. This was held to be unreasonable. In recent years the
tendency has been to standardize law by statute. This has led to a decline of custom as a source of law so that
it is now almost extinct. The types of customary rights that do still exist are, for example, rights of way and
rights of indulge in sports or pass times on a village green.

The Repugnancy Clause

The repugnancy clause was introduced through the reception of English laws. This doctrine describes that the
courts shall not enforce any customary law rule if it is contrary to public policy or repugnant to natural
justice, equity and good conscience. The repugnancy clause states that customs, norms and practices that are
repugnant to equity and good conscience should be struck out without giving them effect.

It must be noted that customary law is dealt with under section 12 of the Local Court Act that provides that a
custom shall not be repugnant to rules of natural justice, morality or any written law. Additionally, the
Subordinate Courts Act in section 16 refers to African customary law not being repugnant to justice, equity
or good conscience. Both the local courts and the subordinate courts acts outlaw customs which are
repugnant to justice, morality, or good conscience, but do not define the kind of act or practice that should be
encompassed in this term.
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Meaning of Repugnant

The Osbome's Concise Law Dictionary, 9th edition defines repugnant as"contrary to, or inconsistent with".

Additionally, the revised 8th edition of Pocket OxfordDictionary defines repugnant as extremely distasteful or
contradictory.

Therefore, going by these definitions, a custom or practice which is extremelydistasteful should be declared
contrary to human dignity morality and goodconscience, and against the well-being of a human being.

It is submitted that it is for these reasons that both the Local Courts and theSubordinate Courts have
provisions against African Customary Law that [Link] the majority of Zambians do not use or have
easy access to Local Courtsand Subordinate Courts, they are not protected by the statutory provisionsthat
outlaw repugnant customary laws. This then, leaves it to the peoplethemselves, to apply a reasonable test to
decide what is and what is notrepugnant.
In the case of KanikiBuleti v Lot Jairus, it was enunciated that the imposition of the rite of purification
upon individuals against their volition was a customary practice contrary or repugnant to good conscience.

International Law
International law plays an important role in the Zambia legal system. Zambia is signatory to many
international instruments which have contributed to making several statutes. Even though the country is fast
in ratifying, its implementation process is somewhat slow or never become visible. As Zambia belongs to the
dualist tradition, it views international law and domestic law as two separate legal systems. Hence
domestication of international law by an Act of Parliament is necessary before international law can be
applied. This of course excludes customary international law which is binding on all states. The Attorney
General is mandated by article 54(2) (b) of the Constitution to draft and peruse treaties and agreements the
government of Zambia is party to.

In the case of Zambia Sugar Plc v. Fellow Nanzaluka, Appeal No. 82of 2001, the respondent was
employed by the appellant in 1992. His employment was terminated without notice in 1996. He was paid
three months’ salary in lieu of notice. He brought an action in the Industrial Relations Court. The Court
accepted that the conditions of service had been complied with but held that the action was contrary to the

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International LabourConvetion No. 158 of 1982 which forbids termination of workers’ employment without
valid reasons.

On appeal to the Supreme Court it was held that international instruments on any law although ratified and
assented to by the state cannot be applied unless they are domesticated, Zambia had not domesticated the
Convention. Although the Court below was empowered to do substantial justice, that had to be done within
the sphere or scope of domestic law

Modern Scholarly Text Books

It must be known from the onset that modern texts books have no inherent authority of its own, but if
skillfully compiled, it may have a persuasive influence on the court.

Where there is no direct authority in the form of decided cases, persuasive authority may be found in legal
writings in textbooks and periodicals. In modern times many authors have been cited frequently in court,
both by counsel and by judges in judgments, eg Margaret Munalula, MunaNdulo, Simon Kulusika ,Mumba
Malila or international authors like Smith and Hogan or Glenville Williams.

Legal Treatise
A legal treatise is a scholarly legal publication containing all the law relating to a particular area, such as
criminal law or trusts and estates. There is no fixed usage on what books qualify as a “legal treatise” with the
term being used broadly to define books written for practicing attorneys and judges, textbooks for law
students, and explanatory texts for laypersons.

Legal treatises are secondary authority, and can serve as a useful starting point for legal research, particularly
when the researcher lacks familiarity with a particular area of law. Lawyers commonly use legal treatises in
order to review the law and update their knowledge of pertinent primary authority namely, case law, statutes,
and administrative regulations.

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 Activity

1. Discuss Common Law and how its system worked

2. Show the importance of Equity and how it came to work with Common Law
3. How has Customary Law been received and what does it requires to be applicable
4. Explain the repugnancy rule and show its relevancy

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UNIT 3: ORIGINS OF LAW IN ZAMBIA
LearningObjectives
At the end of this unit, you should be able:

 Describe the origins of the Common Law system

 Explain the importance of the Court of Chancery

 Explain Equity and its impact on Common law

 Discuss Received laws in Zambia and problems faced as a result of applying this
received law

Topic 1: Origins of the Common Law System and the Courts

English law is the legal system of England and is the basis of common law legal systems used in most
Commonwealth countries. It was exported to Commonwealth countries while the British Empire was
established and maintained, and it forms the basis of the jurisprudence of most of those countries.

The essence of English common law is that it is made by judges sitting in courts, applying their common
sense and knowledge of legal precedent (stare decisis) to the facts before them. A decision of the highest
appeal court in England and Wales, the Supreme Court of the United Kingdom, is binding on every other
court in the hierarchy, and they will follow its directions. For example, there is no statute making murder
illegal. It is a common law crime - so although there is no written Act of Parliament making murder illegal, it
is illegal by virtue of the constitutional authority of the courts and their previous decisions. Common law can
be amended or repealed by Parliament; murder, by way of example, carries a mandatory life sentence today,
but had previously allowed the death penalty.

Since 1189, English law has been described as a common law rather than a civil law system (i.e. there has
been no major codification of the law, and judicial precedents are binding as opposed to persuasive). This
may have been due to the Norman conquest of England, which introduced a number of legal concepts and
institutions from Norman law into the English system. In the early centuries of English common law, the
justices and judges were responsible for adapting the Writ system to meet everyday needs, applying a
mixture of precedent and common sense to build up a body of internally consistent law.

It is profound to note that the feature which more than anything distinguishes the common law from other
western legal systems is the extent of its reliance upon precedent. As will be seen later, this carries with it
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important implications for the nature of legal reasoning in those countries which employ the common law
system. But it also contains the seeds of one of the insightful truths of this legal system – that, it is an
inherently conservative one. When a common law judge decides a case, we say that he or she looks for
relevant precedent to apply to the facts at hand. Another way of describing what happens in common
lawadjudication, however, is to say that the judge uses the past as the yardstick against which to measure the
propriety of present conduct.

The relevance of English Legal History to Zambia

The legal and political institutions of Zambia find their roots, not in the traditions of its native inhabitants,
but in the traditions of the colonial power (Britain) which imported its understanding of law and social
organisation when it colonised the then Northern Rhodesia. This is nothing to be ashamed of. Some people
decry the continued reference to English case law as anachronistic, or as a manifestation of a “cultural
cringe”. In fact nothing could be further from the truth. Of course, we should not regard English law as
superior to our own. But to suggest, as some do, that because Zambia is a fully independent member of the
international community, it must turn its back on its legal and political ancestry is to argue for intellectual
and legal impoverishment. The fact that Zambian lawyers can draw freely upon not only the fruits of their
legal system, but also those of several other countries around the world is a source of great richness.

History of the Common Law

The year 1066 is a watershed date in the history of the common law. This is the year when William, the Duke
of Normandy conquered England and set in motion the chain of events which resulted in those countries
which grew out of the British folds having the distinctive legal tradition that we now refer to as the common
law. The system of economic and social organisation introduced by the Normans is known as “feudalism”.
Stated in simple terms, feudalism was a system of land ownership based upon a formal social hierarchy. At
the top of the hierarchy sat the King, who was said to have dominion over all lands in the kingdom. Under
the King sat a first level of landowning nobles who were known as tenants-in-chief, meaning that they held
title to their lands by virtue of a direct grant from the crown. Under the tenants-in-chief were a series 13 of
descending levels of sub-tenants, each of whom held land by virtue of a grant from the next higher level in
the chain, culminating in the lowest order of land-holding freemen.

The underlying premise of feudal tenancy was the mutual promise. In addition to the loyalty that all subject
owed the King, feudal loyalty was owed one level upwards – each landholder swore an oath of allegiance to
his lord, who was his immediate superior in the chain. Attached to the bond of loyalty, was an obligation to
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provide one’s lord with a share of one’s crops and, if necessary, to engage in military service on the lord’s
behalf.

In return, lords promised to protect and assist their tenants in time of need. One of the prime responsibilities
of the Norman Kings, was to hear complaints from their subjects. Accordingly as William and his successors
travelled around the kingdom, they would “hold court” and receive petitions from the people. Often the
petitions complained of acts of injustice committed on them by local officials. The premise upon which the
King dealt with these petitions was that like cases should be treated alike. This was the foundation of the
system of stare decisis. Over time, a body of royal rulings dealing with petitions for justice came to be built
up. This body of rules came gradually to be known as the common law.

Legal Structures under the Common Law

From the earliest times after the conquest, the Kings had gathered around them a body of trusted advisors
known as curia Regis or the king’s court. The curia regisfunctioned as a general advisory body, providing the
king with counsel and advice before he made decisions. Gradually, though, probably because the king
wished to be relieved of some of the more tedious aspects of ruling, some decisions began to be left to
members of the curia Regis itself. In addition to the, the kings began to appoint officials called “justiciars”.
The justiciarsacted as a form of viceroy in the king’s absence.

The appointment of these royal delegates the curia Regis and the justiciars marked an important step in the
transformation of the common law from a personal instrument of the king to a real apparatus of government.
As one would expect, in the early days, if one wanted to seek the king’s intercession in a dispute, one had to
approach it himself. This meant going where the king happened to be in residence, which was not always an
easy thing. But with delegates who could in the king’s absence act on his behalf the lot of the seekers of
royal justice was eased.

Even more significant was the appointment, which began in the 12th century of Justices in Eyre
(JusticiaeErrantes) a group of travelling justices who although not necessarily members of the curia Regis,
carried the King’s commission to hear and resolve disputes in all parts of the country. For purposes of these
travelling justices, England was divided into a series of regions, or circuits which formed the basis of legal
administration in England until the 1970s. Over time the curia Regis gave birth to a body of professional
judges whose job was to hear disputes between common folk (the plea of common folk). This body became
known as the Court of Common Plea.
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There was also a body of specialised financial advisors, who came to hear disputes involving the royal
revenue. Because the table at which this body sat was covered with a chequer-patterned cloth, it came to be
known as the Court of Exchequer.

Beyond the Common Plea and the Exchequer, there remained a group of advisors who continued to travel
with the king. Over time this group of advisors were divided into two sorts: those whose task was to advise
on resolution of individual disputes (coramregeor King’s Bench) and those whose job it was to advise on
more general questions of policy (council).

These three dispute – resolving institutions : the common pleas, the exchequer and the king’s bench or
queens bench are together known as the common law courts, and it was through their work that the
distinctive English system of justice known as common law flourished.

The writ system

The formal division of the curia Regis into three common law courts and the council was an attempt to cope
with the demands of centralised government. But it was not enough. People still flocked to the new common
law courts in such numbers that it came close to overload. In response, attempts were made to regularise and
formalise its procedures. The chief means of systemisation was through what is known as the writ system.
A “writ” is a written commands from the monarch that something be done. In the context of history, a writ
was a command from the king to the sheriff (shire-reeve or king’s representative in the country) that a person
against whom a complaint had been made be brought to court to answer the allegation. Writs were purchased
by plaintiffs from a royal official (chancellor) and it was through the royal authority flowing from the writ
that the legal process would begin.

This writ system highlights one of the underlying features of the common law system, namely its obsession
with procedure. People often express frustration at the extent to which even now players in the common law
process remain preoccupied with questions of procedural nicety.

Trial procedures in the early Common Law

One of the main weaknesses of the early common law was the lack of local knowledge on the part of the king
and his deputies. In the early days, this problem was attempted to be circumvented by an appeal to divine
intervention. Trial by ordeal and battle reflected an expression of faith that God would identify the wrong
doer. Trial by ordeal was commonly used in criminal cases. There were different forms of ordeal. For
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example, scalding of a hand or arm with boiling water or burning of the hand with a red-hot iron (the healing
of the hand or arm within a certain period of time being a sign from God that the person was not guilty. Trial
by ordeal came to an end in 1215 when the church forbids the practice.

Trial by battle was used in non-criminal cases but was based on a similar premise, that God would not allow
a party in the wrong to be victorious. In a battle, the participants were each armed with a long staff and a
leather shield, and the fight continued until one party gave up or was knocked unconscious. Infants, women
and the elderly could employ “champions”. A champion was someone who would take the field on behalf of
this category of persons.

Existing alongside the trial by ordeal and battle was another means of proof whereby a defendant could
disprove allegations made against him or her by producing a certain number of witnesses who would under
oath support his or her version of the facts. This was known as the wager of law. Here the travelling justices
would enlist the services of a number of men from the locality who would, on the basis of their local
knowledge, determine which party was probably telling the truth. These men came to be known as the jury
(from jurare or to swear). Possibly because of the religious symbolism (the number of apostles being the
same), the number of jurors was eventually settled as twelve.

Activity

1. Explain the development of the Common Law Legal system

2. Discuss how the Common Law was structured
3. Show if there is need to still use English Laws in Zambia

Topic 2: Selected Common Law Courts

For a time after the Norman Conquest of England in 1066, the king himself sat to hear cases involving royal
interests and the court was called “coramrege” (Latin for "before the King"). When the king began delegating
authority to administer justice, the tribunal he appointed was called Curia Regis, the King's Court. Out of the
Curia Regis came the three royal common-law courts. The first offshoot was the Exchequer, which
originally collected taxes and administered the king's finances, but by 1250 was exercising full powers as a
court. Next to develop as a separate court was Common Pleas, a court probably established by HENRY

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IIduring the latter half of the twentieth century to hear cases not involving the king's rights. The remaining
part of the Curia Regis reviewed decisions of the Common Pleas by issuing writs of error. This court, later
known as the King's Bench, also heard cases involving the king's interests, particularly criminal matters and
cases involving high noblemen. For many years the work of the court was written as if proceedings before it
were before the king himself. The common-law courts competed with the Chancery, which exercised Equity
jurisdiction, and their struggles shifted the division of authority at various times.
Common Pleas

These were the courts which were also called Common Bench and were early established as a permanent
court with jurisdiction to determine controversies between the king’s subjects.

It was impractical for the litigants to follow the King around the country, hence the “MAGNA CARTE” of
1215 provided that Common Pleas should be heard in a certain place which was established in Westminster
Hall. The court had jurisdiction to hear and determine civil controversies. It was composed of four Judges,
the Chief Justice of the court and there Puisne Justices. It had jurisdiction of actions originally brought in the
court and actions removed to the court from some of the local courts.

The judges were full time lawyers and the courts’ jurisdiction extended to all disputes which did not concern
the King’s interest, for example personal actions of debt. It also tried actions for trespass where the title to
land was concerned. It was the most widely used court, since it exercised jurisdiction over land and most
disputes concerned land, since only landowners could afford to use the courts.

The Curia Regis

The Curia Regis (King’s Court). Although it was called, it had legislative, administrative and judicial
functions. It was therefore the predecessor of Parliament as well as the courts. It originally consisted of the
King and the tenants-of-chief. These were men who were given land in return for some services such as the
provision of men or arms. The King would travel the country and the Curia Regis would meet wherever the
King was. In the mediaeval times a pattern developed whereby courts separated from the curia Regis and
eventually acquired a jurisdiction separate from it. The king, however, retained a residual judicial power
which later led to other courts deriving their jurisdiction from him, notably the Court of Chancery and the
Star Chamber. The Common law courts which split from the Curia Regis were the Courts of Exchequer,
Common Pleas and King’s Bench.

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The Exchequer of Pleas or Court of Exchequer

This became the separate court in the reign of Henry I which was estimated at 1140 and originally dealt with
the collection of royal revenue, and at a later date disputes over debts. The judges were known as Barons.

It was a court that dealt with matters of equity, a set of legal principles based on natural law and common law
in England and Wales. Originally part of the curia regis, the Exchequer of Pleas split from the curia during
the 1190s, to sit as an independent, central court.

The Exchequer's jurisdiction, at various times, was common law, equity, or both. Initially a court of both
common law and equity, it lost much of its common law jurisdiction after the formation of the Court of
Common Pleas, and from then on concerned itself with equitable matters and those common law matters it
had discretion to try, such as actions brought against Exchequer officials and actions brought by the monarch
against non-paying debtors. With the Writ of Quominus, which allowed the Exchequer to look at "common"
cases between subject and subject, this discretionary area was significantly expanded, and it soon regained its
standing in common law matters.

The Exchequer's position as a court originally came from an informal process of argument between the king
and his debtors as to how much money was owed; by the 13th century, this had evolved into formal court
proceedings. Therefore its initial jurisdiction, as defined by the Statute of Rhuddlan, was as a court where
only the king could bring cases. The Exchequer became the first "tax court", where the king was the plaintiff
and the debtor the defendant. The king was represented by the Attorney General, allowing him to avoid much
of the legal costs associated with a court case. The "next logical step" was to allow debtors to collect on their
own debts in the Exchequer, so that they could better pay the king; this was done through the Writ of
Quominus. The Exchequer also had sole jurisdiction to try cases against their own officials and other figures
engaged in collecting the royal revenue. In 1649 the Exchequer formally extended its common law and
equity jurisdiction, becoming a fully fledged court of law able to hear any civil case.

The main focus of the Exchequer was the collection of royal revenue as part of the greater Exchequer, which
was officially undertaken by the Lord High Treasurer. The Exchequer was unique in having jurisdiction in
matters of both equity and the common law, the latter initially curtailed after the Magna Carta and reserved
for the Court of King's Bench and Court of Common Pleas, although it later grew back. This process of
common law and equity was reversed; during the 16th century the Exchequer was solely a common law
body, with the equity jurisdiction only again becoming relevant near the end of the Tudor period. W. H.
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Bryson argues that this happened during the reign of Edward I. By 1590 the Exchequer's jurisdiction over
equity cases was confirmed, and it was handling a significant number a year, including disputes over trusts,
mortgages, tithes and copyholds; since taxation was ever-present, it was not difficult to show that the dispute
prevented the payment of a debt to the monarch, allowing the

The King’s Bench Court

This was the last of the three courts to break away from the Curia Regis, its first Chief Justice being
appointed in 1268. Its original jurisdiction was exercised principally in civil matters, although its judges did
have criminal jurisdictions in the assize courts. It also had, because of its association with the king, the
jurisdiction to issue the prerogative writs of mandamus, prohibition and certiorari which restrain abuses of
jurisdiction by inferior court and public officials. In addition it had appellate jurisdiction over the court of
Common Pleas.

Activity 3.3

Show the role and importance of the Courts that developed from the Curia Regis

Topic 3: Significance of the Court Of Chancery

The early Chancellors were members of the clergy who were very concerned to order what was, as a matter
of conscience, fair between the parties. The first lawyer to be appointed chancellor was Sir Thomas More in
1529. At first there were no fixed rules on which the Court proceeded. Gradually the Court began to be
guided by its previous decisions, and formulate general principles known as the ‘maxims of equity’, upon
which it would proceed. Finally the Court of Chancery evolved a body of law the principles of which were as
firm as those of the common law.

The Maxims of Equity

These are principles which the Court of Chancery followed when deciding cases, and which are applied
today when equitable relief is claimed. There are many maxims, the following being some of the more well-
known example:
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 a. He who seeks equity must do equity. A person who seeks equitable relief must be prepared to act
fairly towards his opponent as a condition of obtaining such relief. For example a mortgagor who
wishes to exercise his equitable right to redeem must give reasonable notice of his intention.
b. He who comes to equity must come with clean hands. Not only must the plaintiff ‘do equity’ by
making proper present concessions to the defendant, he must also have acted in his past dealing with
the defendant. For example D.C. BUILDERS V REES (1996).
c. Equality is equity. For example since equity does not allow the remedy of specific performance to be
involved against a minor (a concession to his youth), it will also not allow a minor to claim the
benefit of this remedy.
d. Equity looks at the intent rather the form. For example if an agreed damages clause in a contract is
not a genuine pre-estimate of the loss that would result from a breach, equity would regard the clause
as a penalty clause and treat it merely as a device to induce performance of the contract. The court
would therefore enforce the contract as written, but would award the innocent party his actual loss.

The achievements of the Court of Chancery

These were considerable; in particular the court developed the law relating to trusts and mortgages, and
discretionary remedies namely:

a. Injunction – An order of the court compelling or restraining the performance of some act.
b. Specific performance – An order of the court compelling a person to perform an obligation existing
under either a contract or trust.
c. Rectification – The alteration of document so that it reflects the true intention of the parties.
d. Rescission – The restoration of the parties to a contract to their pre-contract state of affairs.

Activity

1. Explain the role that the Courts of Chancery played in English Law
2. Discuss the improvements that were brought by this Court
3. List the maxims that were used under this Court

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Topic 4: Origins of Equity and its impact on Common law
As the law became more systematised, it also became rigid. What had begun as an informal and
comparatively speedy means of dispute resolution had instead become not only procedurally complex but
also often extremely slow. Beginning in the 15th century, people started again to approach the King with
petitions complaining of injusticeinjustice now often claimed to have been suffered at the hands of the
common law courts. At the beginning, the King responded to these complaints either himself, or through the
council. But as before, he soon began to delegate responsibility for looking after these petitions for redress to
a royal official. This time the official chosen was the Chancellor, the person, it will be remembered whose
job was to issue writs. The fact that it was the Chancellor who was chosen had an important bearing on the
way that cases of injustice were to be handled. This is because for a long time, the Chancellors were trained
as priests. This being the case, when they looked into allegations of injustice, they did not, as the common
law judges did, base their judgements on the accumulated body of judicial precedent. When they were
confronted with vexing issues of proof, they did not look to form, as their common law brothers did. Instead,
they grounded their judgements on Christian precepts. This body of Chancellor-made, and Christian based
law became known as “Equity”. The body set up to hear equitable claims became known as the Court of
Chancery.

One of the features of equity is that it is a discretionary system of justice. While under the common law, if
one could prove certain things, one establishes a legal right to something, in equity, the Chancellor retained a
discretion not to grant a `requested remedy if he thought the plaintiff was not morally deserving. The essence
of this discretion was captured in a number of maxims such as “he who seeks equity must do equity” and “
he who comes into equity must come with clean hands”. The moral aspect of equity is well captured by the
so-called “equitable maxims “ a series of twelve (12) statements upon which equitable doctrine is supposed
to be based, in addition to the two already mentioned above. These are:
1. equity will not suffer a wrong to be without a remedy;
2. equity follows the law;
3. he who is first in time, takes precedence (qui prior est tempore, potiorest jure);
4. where the equities are equal, the law prevails;
5. equity assists the diligent, not the tardy;
6. equity is equity;
7. equity looks to the intent, rather than form;
8. equity looks on that as done which ought to be done
9. equity imputes an intention to fulfil an obligation; and
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10. equity acts in person.

The history of the distinction between law and equity begins in the developing system of law that
followed the Norman conquest of England. A plaintiff who wished to have a complaint heard in the
king’s courts rather than the local courts had to purchase from the office of the chancellor a writ, or royal
command, that fitted the facts of his case that required the defendant to appear in court. The variety of
writs available, and with it the jurisdiction of the king’s courts, expanded until the second half of the 13th
century when, under pressure from the nobility, the power to issue writs was circumscribed, the
jurisdiction of the king’s courts was limited, and the flexibility of the law was diminished. Nevertheless,
there was a residual power in the king and his council to do justice in special cases, and he began to refer
petitions for redress to the chancellor who, as the chief law member of the council, might give relief as a
matter of “grace” or of “conscience” in cases where relief at law was inadequate.

From these beginnings there grew up for non-criminal cases a supplementary system, known as “equity”,
in which, by the early 15th century, justice was administered through a separate court, the court of
chancery. The law courts were forced to accept this system after a notorious struggle that ended in the
early 17th century. Among the distinctive features of a suit in equity as opposed to an action at law were
the absence of a jury, more flexible procedure, and a wider scope of review of appeal. While the law
courts were generally restricted to the award of money damages as relief, equity operated on the person
of the defendant and the court could, for example, issue an injunction, forbidding specific acts in order to
prevent further injury, or it could decree specific performance, ordering performance of an obligation. A
defendant who disobeyed could be punished by fine or imprisonment for contempt of court until
compliance. But because these equitable remedies were considered to be extraordinary, they were only
available where the remedy at law could be shown to be inadequate, and money damages remained the
standard kind of relief.
Equity also came to differ from law in substance as well as procedure, as may be seen from one of its
most important creation, the trust. The trust concept grew out of the conveyance of property by the owner
(the settler) to a transferee (the trustee). For the transaction to succeed, some means had to be found to
compel the trustee to comply with the terms of the trust. Since equity acted upon the person, it was able
to enforce the trustee’s judiciary duties by its sanctions of fine and imprisonment while at the same time
recognising the legal ownership of the trustee. Out of the beneficiary’s equitable rights came the concept
of equitable, as distinguished from legal ownership. Around this new institution a whole new branch of
substantive law was to grow. Today the express trust is widely used in the United States in both real and
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personal property, especially income producing securities, and trust administration has become a task for
professionals with the resultant rise of corporate trustee. Private express trusts are relied upon to dispose
of most substantial family wealth at death; charitable express trusts, are used to create large philanthropic
foundations. The trust concept has also proved a useful tool in the hands of the courts: resulting trusts,
inferred from the circumstances, are used to carry out the presumed intentions of parties to transactions in
property, and constructive trusts, implied as a matter of law, have become an essential device for
avoiding unjust enrichment in cases of fraud and mistake.

Equity found its way into most of the colonies in spite of some resistance which stemmed from the close
relationship that equity had had to the crown. It was generally received in the States, was developed by
the courts in the early part of the 19th century and was subject of Story’s great treatises. Some states had
separate systems of courts for law and equity; others had a single system in which a court might sit as
either a law court or an equity court depending on the nature of the case. Both schemes
occasionedinconvenience, expense, and delay, as where a party sought relief in the wrong kind of court
and had to begin all over again. By the middle of the century there was a demanding merger of law and
equity. New York led the reform by enactment of the Field Code Civil Procedure in 1848. The Code
abolished the distinction between a suit in equity and an action at law, substituted a single civil action for
the different forms of action previously available, and consolidated the rules of procedure borrowing
heavilyfrom the more liberal equity rules. Law `and equity procedures were united in the federalcourts in
1938 and have been merged in practically all of the states.

The merger cannot be fully realised, however, because the right to a jury trial under federal and state
institutions generally extends only to cases that were formally triable at law and not those formerly
triable at equity. Thus, for historical reasons the distinction between law and equity must even now be
observed for this purpose. Where there are both legal and equitable issues in a jury trial, the legal issues
of fact are decided by the jury while the equitable issues are decided by the judge. Moreover, rights that
originated in the equity courts are still referred to as “equitable”. They are exercised in much thesame
way and are subject to most of the same limitations as they were in the courts of equity. The most
important restriction is that they are still available only where the legal remedy is inadequate.

It is therefore important to realise that “equity” is not a synonym for “general fairness” or “natural
justice”. It refers instead to a particular body of rules that originated in a special system of courts.
However, these rules have to a considerable extent been assimilated into the appropriate categories of law
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 and are now often regarded as part, for example, of property or contract law. One result has been that law
schools no longer give a separate course in equity, though the subject may be dealt with as of a broader
course on remedies.

It is true in the United States, as in England, that if we were to inquire what it is that all these rules have
in common and what it is that marks them off from all other rules administered by our courts, we should
by way of answer find nothing but this, that these rules were until lately administered, and administered
only, by our courts of equity.

Activity

Explain how equity came to suppress the harshness of Common law

Topic 5: Received and applied English Law in Zambia

When the European colonists came to came to Africa, they brought their laws with them. The French
introduced their Civil code to their territories; the Belgians and Italians imported their similar Codes, and so
did the Dutch to South Africa and southern Rhodesia, although their influence, especially in the former, was
later much diluted by English law. The English did not have a ready-made Code to carry over to their
territories in Africa Rather, they brought the common law, as supplemented by their own and territorial
legislation. By the end of the colonial period, nearly all of Africa had felt the impact of European law. One
exception to the colonial tradition, Liberia, was heavily influenced by American and Common law traditions.
Probably the only country to escape altogether was Ethiopia, which has recently adopted substantive Codes
based on European Civil law sources and procedural laws drawn from Common law sources.

Naturally, this imposition of foreign laws entailed a clash with the existing order, that is, with customary
laws, and sometimes with religious, especially Islamic laws.

Since numerically the persons who could claim the benefit of customary law, the entire African population,
far exceeded the European population, in every English-speaking African state the strange anomaly obtained
that the ‘basic’ law, English law, applied to a miniscule proportion of the population, by the ‘exceptional’
law, customary law, applied to the vast majority.

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In this section, we look only at the nature and process of the imposition of the European laws. Specifically
we consider the reception of the English law in her former African colonies. The pattern for their reception
was very similar throughout the colonies; as we shall see in the next chapter, it was utilized in Northern
Rhodesia as well.

Topic 6: Problems of applied English and Local Law

In as much as it is vital to borrow from British laws as we have gaps in our legislation, it is also imperative to
note the problems that arise as a result of doing do.

It is essential to show using cases a historical perspective, the problems that arise in applying English
principles within the Zambian or local laws context particularly where it is necessary to evaluate a particular
rule of customary law.

Margaret Munalula is one of the scholars who has written more on this topic. She asserts that conflicts
between customary law and the imposed laws from Europe were of course inevitable. One sort of clash
would occur when Europeans and Africans were involved in the same law suit. The outcome of this conflict
was predictable, customary law was held applicable only when Africans were exclusively involved. This is
still largely so. According to local practice, customary law was to be applicable, especially in marriage,
property and inheritance and other civil cases, ‘where the parties thereto are Africans’, although it also
applied in civil cases ‘between Africans and non-Africans’, where ‘substantial injustice’ would otherwise
result.

A more subtle and difficult problem arose when customary law admittedly applied to the parties in the case,
but was substantively repugnant to the European judge. The judge, of course, could simply swallow his
indignation and apply the law. Incautious judges were not so inclined, however. They had at least three
choices of ways to avoid applying the customary law. They could merely disregard the advice of their
assessors as to what the law was or what the facts were. Recall that section 34 of the High Court Act
expressly provides that the court ‘shall not be bound’ to follow assessors’ opinions. Alternatively, the courts
could find a direct conflict between the customary law and an introduced, written law. Section 12 of the
Local Courts Act, for instance, provides that customary law that is ‘incompatible with the provisions of any
written law’ shall not be applicable. Section 16 of the subordinate Courts Act carries a similar provision,
except that it adds ‘incompatible, either in terms or by necessary implication with any written law for the
time being in force in Zambia’.

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The third alternative open to a recalcitrant judge gives rise to the most difficulties. Under the legislation
supplied to the colonies, customary law generally was not applicable if it was regarded as ‘repugnant’ to
some standard of behavior. This statutory framework, too, has survived independence. In Zambia, for
instance, customary law is inapplicable if it is ‘repugnant to justice; equity or good conscience,’ or
‘repugnant to natural justice or morality’

The critical question, of course, is precisely what these vague terms mean. This is a question that has defied
precise response. Some courts openly avoid addressing the issue. If you read the Kaniki v jairuscase again,
try to see how that court resolved the question. Other courts have merely referred the whole issue to the
principles of English justice as conceived by themselves and this may have been precisely the original intent
of the statutory provision. For instance, in a Northern Rhodesia case, the court was faced with a defence to
murder based on a claim that the defendants had attacked the victim as a part of a ‘pointing out’ tradition.
The court in R v Mantengula. LRNR 148, 151 (1951), cited the repugnancy provisions of the statutes and
held this tradition unacceptable as ‘against justice as we people in England see it’.

Native customary law is administered by the native courts, but there is one condition, that ‘it must not be
repugnant to natural justice or morality’. This is not easy to explain and is the best done by taking examples,
when convictions are obtained by means of witchcraft and/or torture, or where any cruel punishment follows
a conviction that is contrary to natural justice or morality. Each question of this nature has to be decided on
its merits. A native custom which prevented a woman from obtaining a divorce from her husband without his
consent has been held to be a native custom, which enabled a husband refuse to accept compensation when
his wife committed adultery, thus depriving the father of his right to the children, was held to be contrary to
natural justice. In this particular case the husband had neglected his wife and the man lived with her for about
ten years and had several children. That was the real ground upon which the decision was given. If he had
lived with her for only a week or a month he would have no right at all to a child. In yet another case the
judge said: ‘Native customs should not be interfered with unless they impress us with some abhorrence or are
obviously immoral in their incidence’. That is the test which is usually applied now.

In Gwao bin kilimo v. kisundi bin Ifuti (1938) 4 TLR 63, it appears that a government tax clerk named
mange in the ordinary course of his duties collected Shs. 10/-from the respondent for poll tax and issued to
him a forged tax ticket and converted the money to his own use. For this action, mange has been tries in the
criminal court and duly punished. The respondent then sued him the civil court for the return of Shs. 10/-and
obtained a decree.
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In the execution of that decree the respondent has cause to be attached by court process two head of cattle
which are admittedly the property not of the judgment-debtor, mange, but of his father, Gwao, the present
applicant. Gwao unsuccessfully objected to this attachment before the lower court and has now petitioned
this court to revise that decision and order his cattle to be returned to him.

In deciding the application the lower court rightly appreciated that the two questions it had to decide were:

(i). Is there an authentic native law of the turu tribe which allows the seizure of a father’s property in
compensation for a wrong done by his son?

(ii). If so, is this law one by which in accordance with the terms of Article 24 of the Tanganyika order in
council 1920, a British court may and should property be guided?

On the first point there was before the lower court the evidence of half a score of witnesses claiming
knowledge of the laws of the Wanyaturu. Unfortunately, their evidence was mutually contradictory on
essential point and the court eventually had to decide the matter preferring certain parts of the evidence of
two or three of the witnesses to the general drift of all the rest of the evidence. Some rather unconvincing
reasonare given in the judgment for discarding and disbelieving the evidence of the Majority of the witnesses
on this point. I must confess that the general impression I gained from pursuing the statements of the
witnesses as a whole is that the evidence in favour of the existence of a Turu law compeling a father to pay
compensation for his son’s torts is somewhat doubtful and exceedingly scanty, all the witnesses agreed that
in olden days a father usually, in the case of theft of cattle by his son, voluntarily handed over the cattle to
the aggrieved party in compensation; or, if he refused to do so, that public opinion would condone a raid on
his kraal by the aggrieved party and the forcible seizure experience of the tribe, as a community, would
compel this payment of compensation by a father for his son’s misdeeds. Even the district officer was forced
to admit in cross-examination that this alleged ‘law’ was not of universal application in the tribe and he
could not recall, when pressed, any single case in which it has been to his knowledge enforced. The other
witness on whom the court specially relied, selemanimuna, also admitted that the payment of such
compensation by the father was either voluntary or else enforced by a personal raid by the a aggrieved party,
and that there was to his knowledge no enforcement of such a law or custom by any baraza or gathering of
the old men of the tribe. With one exception, the remaining seven or eight witnesses gave general support to
the view that no authentic law of the Turu tribe exists to compel a father to pay compensation for his son’s
misdeeds, though all were agreed that in certain cases he would probably do so voluntarily or else might have
his cattle seized forcibly by the aggrieved party.

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 Activity

1. Explain the problem that has arisen as a result of applying English received law
in Zambia
2. Analyse the cases provided and state in your view if there is a problem with
English Law or not. In your discussion, show if the Local Law is still the most
imperative

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UNIT 4: THE COURT SYSTEM IN ZAMBIA
Learning Objectives
At the end of this unit, you should be able:

 Discuss the Zambian Court System

 Explain the Supreme, High, Industrial Relations, Subordinate and Local Court
 Explain the jurisdiction of these Courts
 Explain appellate, original and unlimited jurisdictions

Topic 1: Court Structure

The Judiciary of Zambia is an independent arm of the government. Under Article 91(2) of the Constitution,
Judges, Magistrates and Justices shall be independent, impartial and subject only to the Constitution and the
law. They shall also conduct themselves in accordance with the code of conduct promulgated by parliament.

Article 91(1) of the Constitution defines the composition of the Judicature of the Republic as consisting of:

1. The Supreme Court of Zambia;

2. The High Court of Zambia;
3. The Industrial Relations Court;
4. The Subordinate Court;
5. The Local Court; and
6. Such lower Courts as may be prescribed by an Act of Parliament. For example, the Small Claims
Courts established by the Small Claims Courts Act Chapter 47 of the Laws of Zambia.

Furthermore, Article 98 (2) provides for the tenure of offices of the Judges that they shall vacate office on
attaining the age of sixty-five and they may only be removed from office for inability to perform the
functions of office, whether arising from infirmity of body or mind, incompetence or misbehaviour.

The Judges of the Supreme Court and the High Court are appointed by the President on the advice of the
Judicial Service Commission, subject to ratification by the National Assembly as stated by Article 95 of the
Constitution.

The Magistrates who preside over Subordinate Courts are appointed by the Judicial Service Commission,
acting in the name of the President.
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Under Article 91(3) of the Constitution the Judicature shall be autonomous and it is administered in
accordance with the Judicature Administration Act Chapter 24 of the Laws of Zambia.

Judiciary Objectives

The roles or core functions of the Judiciary include the following:

• Administer justice through resolving disputes between individual and individual, and between state
and individual
• Interpret the constitution and the laws of Zambia
• Promote the rule of law and contribute to the maintenance of order in society
• Safeguard the constitution and uphold democratic principles
• Protect human rights of individuals and groups

The Administration of Judicature

According to Section 3(1) of the Judicature Administration Act Chapter 24 of the Laws of Zambia, The
President, on recommendation of the Judicial Service Commission, appoints a Chief Administrator who is
responsible for the day to day running of the Judicature and the implementation of resolutions of the Judicial
Service Commission.

The Chief Administrator

This is the Controlling Officer regarding the expenditure of the Judicature within the meaning of the
Finance (Control and Management) Act Chapter 347 0f the Laws of Zambia. The office keeps books of
accounts and other records in relation to the accounts of the Judicature and prepares and submits financial
reports concerning the activities of the Judicature to the President.

Judicial Appointment
The Judicial Service Commission is responsible for identifying and recommending candidates to the
President for appointment to judicial offices. Article 93(1) of the Constitution states that the Chief Justice
and Deputy Chief Justice shall subject to ratification by the National Assembly, be appointed by the
President. Article 95(1) of the Constitution states that the Puisne Judges shall, subject to ratification by the
National Assembly, be appointed by the President on the advise of the Judicial Service Commission. The
Chairman and Deputy chairman of the Industrial Relations court are also appointed by the President on
advise by the Judicial Service commission as stipulated by Article 95(2) of the Constitution. The other

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members of the Judicature and it's staff are appointed under section 4 of the Judicature Administration Act,
Chapter 24 of the Laws of Zambia.

These include the High Court Registrar, Magistrates, Justices of the Local Courts, Sheriff and other members
of staff who are appointed by the Judicial Service Commission.

The Judicial Service Commission

The Judicial Service Commission is chaired by the Chief Justice. Other members of the Commission include:

 A Supreme Court Judge

 The Attorney General
 The Solicitor General
 A Member of Parliament
 The Secretary to the Cabinet
 A Legal Practitioner
 President of the Law Association of Zambia
 Dean of the School of Law
 The Chairman of the Public Service Commission

Administration of the Judiciary

According to Section 3(1) of the Judicature Administration Act Chapter 24 of the Laws of Zambia, The
President, on recommendation of the Judicial Service Commission, appoints a Chief Administrator who is
responsible for the day to day running of the Judicature and the implementation of resolutions of the Judicial
Service Commission.

Hierarchy of the Courts

The Zambian judicature as outlined above has the following hierarchy:

The Supreme Court

The Supreme Court of Zambia is established under Article 92(1) of the Constitution of Zambia, Chapter 1 of
the Laws of Zambia.

The Supreme Court is also created under the Supreme Court Act which is Chapter 25 of the laws of Zambia.

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The Supreme Court of Zambia is the final Court of appeal and it has such jurisdiction and powers as
conferred on it by the Constitution and any other law, as outlined in Article 92 of the Constitution. Unlike in
other jurisdictions, the Supreme Court of Zambia has the final say in all matters, including the interpretation
of the Constitution.

The Supreme Court of Zambia consists of:

 The Chief Justice;
 The Deputy Chief Justice;
 Seven Supreme Court Judges or such greater number as may be prescribed by an Act of parliament

The Supreme Court has jurisdiction to hear appeal cases from the lower courts. It has original jurisdiction to
handle Presidential petition.

The High Courts

The High Court of Zambia is established under Article 91(1) (b) of the Constitution of Zambia,
Chapter 1 of the Laws of Zambia. Article 94 (1) of the Constitution states that the High Court of Zambia
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 power as may be conferred on it by the
Constitution or any other law.

The High Court is also created under the High Court Act Chapter 27 of the laws of Zambia and has
jurisdiction on civil and criminal matters.

It has original jurisdiction to cases like rape, defilement, adoption, divorce and Parliamentary petitions just to
mention but a few.

It is vital to note that the Chief Justice of the Republic of Zambia is an ex-officio Judge of the High Court, as
provided by Article 94(3) of the Constitution. The High Court of Zambia is a superior court of record and has
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 direction as it may consider appropriate for
ensuring that justice is duly administered by any such Court.

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The Industrial Relations Court

The Industrial Relations Court is established under Article 91(1) of the Zambian Constitution. It is also
created under the Industrial Relations Court under part XI of the Industrial and Labour Relations Act Chapter
269 of the Laws of Zambia.

It is vital to note that there are currently two Courts of such nature in Zambia, one situated at Lusaka and the
other at Ndola.

Jurisdiction

The Court has original and exclusive jurisdiction in all industrial relations matters such as inquiring into and
making decisions in collective disputes, interpreting the terms of collective agreements and recognition
agreements, generally adjudicating upon any matter affecting the collective rights, obligations and privileges
of employees, employers and representative organizations.

Composition

The Court is composed of:

 a Chairman
 Deputy Chairmen; and
 not more than ten members as the Minister of Labour may appoint

Note that The Chairman and Deputy Chairmen shall have the same tenure and security of office as a Judge of
the High Court.

The Subordinate Courts

The Constitution of the Republic of Zambia provides for the establishment of Subordinate Courts under
Article 91(1) (d). Additionally, With reference to the Subordinate Courts, Chapter 28 of the Laws of Zambia
provides for the creation of Subordinate Courts in all the districts in Zambia and the creation of the
Subordinate Courts Act, Chapter 28 of the Laws of Zambia. These are the lower courts and the courts of the
first instance.

Since the Subordinate Courts are of various classes, it is imperative to see section 3 of the Subordinate
Courts Act which establishes the classes of courts and their jurisdictions as follows:

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A Subordinate Court on monetary jurisdiction of the first class to be presided over by a:

a) Principal Resident Magistrate who is mandated to handle a case of not more than K30,000.00
b) Senior Resident Magistrate mandated to handle a case of not more than K25,000.00
c) Resident Magistrate mandated to handle a case of not more than K20,000.00
d) Magistrate of the First Class mandated to handle a case of not more than K10,000.00

A Subordinate Court of the second class to be presided over by a Magistrate of the second class mandated to
handle a case of not more than K8,000 .00

A Subordinate Court of the third class to be presided over by a Magistrate of the third class mandated to
handle a case of not more than K4, 000. 00

Additionally, section 7 of the Criminal Procedure Code Chapter 88 of the Laws of Zambia, a
Subordinate Court of the first, second or third Class may try any offence under any written laws of Zambia
and pass any sentence but;

 A Surbodinate Court presided over by the Principle Resident Magistrate and Senior Resident
Magistrate cannot pass a sentence of imprisonment of more than 9 years;
 A Resident Magistrate cannot pass a sentence of imprisonment of more than 7 years;
 A Magistrate Class 1 cannot pass a sentence of imprisonment of more than 5 years;
 A Surbodinate Court presided over by a Magistrate of second and third Class cannot pass a
sentence of imprisonment of more than 3 years.

It is trite law that all appeals from Subordinate Courts against any judgement or older go to the High Court.

The appointment of officers is under section 4 of the Subordinate Courts Act which states that the
appointment of Magistrates shall be made by the Judicial Service Commission acting in the name and on
behalf of the president.

Section 7 of the Subordinate Court Act grants all magistrates equal power, autonomy and jurisdiction.

Conversely, under Section 8 of the Criminal Procedure Code, a Court of any class may promote
reconciliation between the parties to facilitate the settlement in an amicable way in less serious offences like
assaults and offences of personal or private nature.

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Subordinate Courts are Courts of record and the jurisdiction vested in these courts shall be exercised (so far
as regards practice and procedure) in the manner provided by the Subordinate court Act and the Criminal
Procedure Code, Chapter 88 of the Laws of Zambia.

Subordinates Courts are also courts of first instance and they decide all matters as provided for by the Act
except for offences of treason, murder, aggravated robbery, election petitions and all matters that involve the
interpretation of the Constitution.

The Local Courts

The Local Courts are established under Article 91(1)(e) of the Constitution of Zambia, Chapter 1 of the
Laws of Zambia. They are also created under the Local Courts Act, Chapter 29 of the Laws of Zambia.

Local Courts in Zambia have different grades, exercising jurisdiction only within the limits prescribed for
such grade.

Provided that no Local Court shall be given jurisdiction:

 to determine civil claims other than matrimonial or inheritance claims of a value greater than one
hundred and twenty fee units

 to impose a fine exceeding forty penalty units or

 to order probation or imprisonment for a period exceeding two years.

Section 8 of the Local Courts Act states that Local Courts shall have and may exercise within the territorial
limits set out such jurisdiction as may be prescribed for the grade of court. Grade A are mandated to handle
Cases of up to K3, 060.00 while Grade B Local Courts are mandated to handle Cases of up to K2, 500.00.

The Local Courts, under the Local Court Act section 12 provides for the administration of customary law as
it provides that African Customary law shall be applicable to any matter before it so far as such law is not
repugnant to natural justice or morality or incompatible with the provisions of any written law.

Under Section 11 of the Local Government Act Chapter 281, no Local Court shall have jurisdiction to try
any case in which a person is charged with an offence in consequence of which death is alleged to have
occurred or which is punishable by death.

Appeals

Appeals from Local Courts against any judgement or older go to the Subordinate Court.
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 Activity

1. Explain the composition and jurisdiction of the Courts in Zambia

2. Discuss the principle of appellate, original and unlimited Jurisdiction

Topic 2: Personnel of the Courts and Addressing the Court and its Officers, (contempt regime)

Note: That this topic will be covered by field research outing i.e trips to be taken to the court to go and learn
about personnel, how to address the courts and its contempt regime.

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UNIT 5: LAW OF PERSONS
Lea rn i n g O b j ect iv es

At the end of this unit, you should be able:

 Discuss legal personality and its effect

 Distinguish between natural and artificial persons
 Explain the concept of veil of incorporation and piercing the veil of
incorporation
 Discuss separate legal personality

To p i c 1 : Leg a l Perso n a li t y

Legal personality which is sometimes referred to as artificial personality is the characteristic of a non-
human entity regarded by law to have the status of a person. A legal person in Latinpersona ficta, has a legal
name and has rights, protections, privileges, responsibilities, and liabilities under law, just as natural persons
do. The concept of legal personality is perhaps one of the most fundamental legal fictions. It is pertinent to
the philosophy of law, as well as corporations’ law.

Corporations

Legal personality allows one or more natural persons or artificial persons to act as a single entity for example
a composite person for legal purposes. In many jurisdictions, legal personality allows such composite to be
considered under law separately from its individual members or shareholders. They may sue and be sued,
enter into contracts, incur debt, and have ownership over property. Entities with legal personality may also be
subject to certain legal obligations, such as the payment of tax. An entity with legal personality may shield its
shareholders from personal liability.

The concept of legal personality is not absolute. "Piercing the corporate veil" refers to a legal decision in
which the rights or duties of a corporation are treated as the rights or liabilities of that corporation's
shareholders or directors. Legal persons may not have all the same rights as natural persons - for example,
human rights, including the right to freedom of speech.

A juristic person is therefore referred to as a legal person. This is a legal entity through which the law allows
a group of natural persons to operate in ways resembling a single composite individual for certain purposes.

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A juristic person enjoys a separate existence independent from that of its members or the natural persons that
created it.

T her efo r e, leg a l su b ject is a g e ner a l t er m u sed t o r efer t o all e nt it ie s t hat ar e r eco g n ize d
b y law, including both juristic and natural persons.

Some examples of legal persons under corporations include:

 Cooperatives, business organization owned and democratically operated by a group of individuals for
their mutual benefit
 Corporations are by definition legal persons. A corporation sole is a corporation constituted by a
single member while corporation aggregate is a corporation constituted by more than one member.
 Companies
 Sovereign states are legal persons.
 In the international legal system, various organizations possess legal personality. These include the
United Nations, the Council of Europe and some other international organizations
 Temples, in some legal systems, have separate legal personality

Companies
Companies have been the most famous legal persons of all times. The word ‘company’ means a
private, a Government Company and a company incorporated under the Act. It has been held to be a juristic
person that is distinct from its members. Further the members/share-holders are not to be deemed as the
owners of the assets of the company but have right to participate in the profits of the company subject to the
conditions in the Article of association. A company is an artificial person but the Courts can lift the corporate
veil to see the realities behind the corporate entity.

It has also been held that a Board of directors would manage the company, as it is a separate juristic person.
It is established that a person could be the controlling shareholder, managing director and yet also be an
employee under a contract of employment with their own company. The company is entitled to place
whatever value it likes on the assets transferred to it in the absence of fraud.

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Separate Corporate Personality

The ‘separate entity’ doctrine that the company is an entity separate to its shareholders was established in the
prominent case of Salomon v Salomon & Co [1897] AC [Link] Corporations-Act-2001-confirms that a
company comes into existence as a body corporate on the day it is registered by the Australian Securities and
Investments Commission. In doing so, a ‘company’ becomes a legal entity with the legal capacity and
powers of an individual. This is the same position with the Zambian system

Limited Liability
Salomon's Case also gives attention to the notion that a company’s property is not the property of the
members, and its debts are not the debts of its members. As such, in combination with the principle of
separate corporate identity, it may be argued that the principles have lent themselves to the concept of limited
liability. Of course, it is for the company, at the time of incorporation, to determine the liability of its
shareholders and this is a matter removed from its separate corporate personality status. For a variety of
reasons, including shareholder security and economic efficiency, Australian companies will often conclude to
be limited by shares.
In application, the shareholders of a limited liability corporation are not personally liable for debts incurred
or torts committed by the company. In the event that a company falters, a shareholder's losses are limited to
the amount that the shareholder has invested in the company.

Lifting the Corporate Veil

The expression 'lifting or piercing the corporate veil' refers to a court looking behind the separate legal
personality of a company. In effect, the court will look behind the corporate entity to assign a corporate right,
privilege, duty or liability to a member of the company where a strict application of the separate legal
personality doctrine would vest the liabilities or rights solely in the company.

Fraud or Sham
The corporate veil may be lifted where there has been a fraud or other breach of the law. The fraud and sham
argument refers to the use of a corporation by the controller to evade a legal or fiduciary obligation, where
the corporation is used as a front to mask real obligations.

As the Full Federal Court noted in Donnelly-v-Edelsten (1994) 13 ACSR 196, that the argument of fraud is,
of course circular. It can only succeed if the argument of sham succeeds. If a company is a ‘sham’ or ‘façade’
then it has incorporated merely to disguise the reality of its operations or evade obligations.
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In order to pierce the corporate veil for fraud, the company must have the intention to use the corporate
structure in such a way as to deny the plaintiff some pre-existing legal right. More specifically, the
corporation is therefore utilised in a manner to avoid a legal obligation. To be clear, it is generally
permissible to form companies to avoid a future liability, for example in a risky business venture that may
fail, however courts may not allow a company to be formed to avoid performing an existing legal
[Link], such arguments can be criticised for disregarding the separate entity principle. In regards
to a ‘sham’ corporation, Windeyer J has held “if a company is duly incorporated and registered under the
[Corporations] Act and the proper records are kept in due form and the prescribed returns made, it continues
to exist as a legal entity. In that sense it is a reality and not a sham”.

Activity

1. Explain the concept of legal personality and its effect

2. Show how corporations are called persons at Law
3. Discuss separate legal personality

Topic 2: Natural Person

A natural person is a human being discernible through the intelligence and subject to physical laws,
regardless of a person’s age, mental capacity, or gender; they are recognized as legal subjects.

These are human beings who are referred to as natural persons. An adult human being has in general terms a
full range of rights and duties. However, even in regards to human being, the law distinguishes between
certain classes and gives to them normal a status which might carry with it a more limited set of rights and
duties than are to the normal adult. These classes include minors, persons of unsound mind, bankrupts and
aliens just to mention a few. Therefore, non-human creatures are not legal persons and do not have the full
range or rights and duties which a human being acquires at birth.

Therefore, individuals, or natural persons, have legal personality i.e., they can be entitled to rights and be
subject to obligations. Legal personality is made up of the capacity to enjoy one’s rights and the capacity to
exercise one’s rights. They thus have legal capacity in national law. Even though individuals are subject to
National Institute of Public Administration – Outreach Divisions Programmes 81
certain international rules and can today be brought before the International Criminal Court, the majority of
writers consider that natural persons have only a legal personality that is "derived and dependent on the will
of states." Corporations are legal entities and have legal personality. A "legal entity" is defined as being the
group of persons or properties having, as in the case of a natural person, legal personality. There are
exceptions, such as undisclosed partnerships or de-facto companies: these are quasi-companies that have
no legal entity. This legal personality therefore grants them the capacity to be entitled to and to exercise
rights, as well as the possibility of seeing their liability incurred in the event that they do not respect
obligations to which they are subject. The criminal liability of legal entities is not recognized in all
states. Legal entities do not have international legal personality. Corporate groups are not legal entities and
do not have legal capacity. Consequently, they are subject neither to national law nor to international law. On
the other hand, each company of the group if it has been set up according to the procedures of national
lawbecomes a legal entity and acquires legal personality in the country where it is registered.

Exa mp le s o f Na tu ra l Perso n a n d Perso n a li t y

A mi n o r
Th e Pen a l Co d e Cha p ter 8 7 o f th e La ws o f Za mb i a
Imma t u re a g e
 A p er so n u nd er t he ag e o f e ig ht year s is no t cr imin a ll y r esp o ns ib le fo r any act o r
o mis s io n.
 A p er so n u nd er t he ag e o f t welve year s is no t cr im ina l ly r esp o ns ib le fo r an act o r
o mis s io n, u n less it is p ro ved t hat at t he t ime o f d o ing t he act o r mak ing t he
o mis s io n he had cap acit y t o k no w t hat he o u g ht no t t o do t he act o r mak e t he
o mis s io n.
 A ma le p er so n u nd er t he ag e o f t welve y ear s is p r esu med t o be incap a b le o f
ha v ing car na l k no wled g e.

In sa n e
 A p er so n is no t cr imina l l y r esp o ns ib le fo r an act o r o miss io n if at t he t ime o f
d o ing t he act o r mak ing t he o mis s io n he is, t hro u g h any d isea se affect ing h is
min d , incap ab le o f u nd er st and ing what he is d o ing , o r o f k no wing t hat he o u g ht
no t t o do t he act o r mak e t he o miss io n. But a p er so n ma y be cr im ina l ly
r espo ns ib le fo r an act o r o miss io n, alt ho u g h h is min d is affect ed by d isease, if

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 su ch d isease d o es no t in fact pro d u ce upo n his mind o ne o r o t her o f t he effect s
abo ve me nt io ned in r efer ence t o t hat act o r o miss io n.

M a rri a g e Act Ch a pt er 5 0 o f t h e La ws of Za mb i a
- S . 17 . I f e it her p art y t o an int end ed ma r r iag e, no t be ing a wid o wer o r wid o w, is
u nd er t went y- o ne year s o f ag e, t he wr it t en co nse nt o f t he fat her , o r if he be d ea d
o r o f u nso u nd min d o r absent fr o m Za mb ia, o f t he mo t her, o r if bo t h be d ead o r o f
u nso u nd mind o r absent fr o m Za mb ia, o f t he g u ar d ian o f su c h p ar t y s ha ll b e
p ro d u ced and s ha ll be an ne xed t o t he aff id a v it r eq u ir ed u nd er sect io ns t en a nd
t welve a nd , save a s is o t her wise p r o vid ed in sect io n n inet een, no sp ec ia l l ice nc e
sha ll be g r ant ed o r cert ificat e issu ed wit ho ut t he pro d u ct io n o f su ch co nsent .

J u v eni les Act Cha p ter 5 3 o f th e La ws of Za mb i a

- Ju ve n ile" mea ns a p er so n who has no t at ta ined t he ag e o f n inet een year s; and
inc lu d es a ch ild and a yo u ng p er so n;
- Ju ve n ile ad u lt " mea ns -
( a) a p er so n who has at t ained t he ag e o f n ine t een year s bu t has no t at t ai ned t he
ag e o f t went y- o ne year s; and
( b) a p er so n who has at t ained t he ag e o f t went y- o ne year s bu t has no t at t ained
t he age o f t went y- five year s and who se class if icat io n as a ju ve n ile ad u lt has
bee n exp r ess ly sa nct io ned b y t he M in ist er .

Ad o pt i on Act Ch ap t er 54 o f th e La ws of Za mb i a
- I n fant mea ns a p er so n who has no t at t ain ed t he ag e o f t went y- o ne year s, bu t do es
no t inc lu d e a p er so n who is o r has been mar r ied

Th e Elect o ra l Act No. 1 2 o f 2 00 6

- S .5 . Su b ject t o t he pro v is io ns o f sect io n seve n, ever y p er so n sha ll be

q u alif ied fo r r eg ist r at io n as a vo t er in d ir ect elect io ns who —
( a) is a cit izen o f Za mb ia;

( b) has at t ained t he ag e o f eig ht een year s ; and

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 ( c) is in p o ssessio n o f a nat io na l r eg ist r at io n card .

Activity

1. Discuss legal personality with regards to natural persons

2. With the aid of various status, give examples of natural persons and show at what
point they acquire this personality

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UNIT 6: THE AFRICAN CUSTOMARY LAW
Learning Objectives
At the end of this unit, you should be able:

 Explain the meaning of African Customary Law

 Discus Zambia’s view on African Customary law
 Explain the interaction and non applicability of Customary Law
 Discuss African Customary Law at International law

Topic 1: Meaning of African Customary law

Local customary laws are applicable to the indigenous in certain circumstances, such as the settlement of
family disputes. The constitution recognises the validity of customary laws even when the same are
discriminatory. The adjective law limits the application of customary law that is repugnant or contradicts the
written law. A dispute based on customary law must be commenced in the local court and is only heard by
the higher courts, the court of record, upon review or appeal.

Customary law is recognised indefinitely in the constitution through the provisions relating to the House of
Chief and through the non-discrimination clause, which excludes customary law from the need to ensure that
no discrimination is sanctioned by law. It is also recognised in procedural laws relating to the various courts
with original jurisdictions.

Customary law is expected to change and embrace more general principles and practices pertaining under the
written law.

Customary Law in Zambia

Customary law today is very different from what it was in pre-colonial times. Then it is very informal and
tended to flow from tribal chiefs as an adjunct of their personal stature and political power. It was very
flexible and varied from tribe to tribe. Since colonisation, it has become somewhat static, particularly where,
it has been applied by the courts; however, it has not evolved to capture effectively the social-economic
development of modern living in Zambia. Hence, although it is applicable to the great majority of the people,
its authority is unclear and it is not studied in the school of law.
The following provisions have proven the existence of African customary law in Zambia:
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Under the Constitution, Article 23 clause 3 indirectly provides for customary law that:

“In this Article the expression "discriminatory" means affording different treatment
to different persons attributable, wholly or mainly to their respective descriptions by
race, tribe, sex, place of origin, marital status (two types of marriages in Zambia i.e
customary and civil), political opinions, colour or creed whereby persons of one
such description are subjected to disabilities or restrictions to which persons of
another such description are not made subject or are accorded privileges or
advantages which are not accorded to persons of another such description.”

In Zambia, there about 73 ethnic groupings each with its own customs and practices considered desirable
for the society in question. The Constitution of Zambia recognises the validity of customary laws,
sometimes even when the same are discriminatory as provided above.

The Constitution further provides that any person who alleges that any of the provisions of Articles 11 to
26 has been, is being or is likely to be contravened in relation to him, then, without prejudice to any other
action with respect to the same matter which is lawfully available, that person may apply for redress to
the High Court which shall hear and determine any such application. Furthermore, Article 28 Clause (2)
(a) provides that any person aggrieved by any determination of the High Court under this Article may
appeal there from to the Supreme Court, hence this appeal.

Selected Cases and Statutes of Customary Law

R v Chinjamba5 N.R.L.R. 384
In his case, a villager, FuliaNjamba, married a girl under 16 years and lived with her as man and wife.
The accused who was the village headman, knew of these facts and took no steps to prevent or report the
matter. He was charged with being an accessory after the fact to unlawful carnal knowledge of a girl
under the age of 16 years, and convicted pursuant to section 119(1) of the Penal code.

Holding
It was held that the carnal knowledge must be unlawful and it is not unlawful for a man to have carnal
knowledge of a girl to whom he is lawfully married.

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Therefore, it is not generally unlawful in Zambia for a man to have carnal knowledge of a girl under the
prescribed age if he is lawfully married to her. Hence, customary law is valid and can be practised so
long it is not repugnant to justice or morality and in this case, it was not.

Additionally, in Munalo V Vengesai(1974) Z.R 91, the court refused to apply English law to distribute
the deceased property because the parties were married under shona customary law. Doyle C.J as he was
then stated that since the parties were married under Shona customary law, the parties should use Shona
customary law to distribute the property. Hence customary law is valid and can be practiced so long it is
not repugnant to natural justice or morality and in this case it was not

In Sibande v The People (1975) Z.R. 101 (S.C.), the appellant was charged with defilement of a girl of
twelve. In answer to the charge he said "I admit the charge. It was an arrangement for marriage. She told
me that she was fifteen years . . ." A plea of not guilty was entered and the trial proceeded. The girl was
the first prosecution witness.

Held:

(i) The court cannot be called upon to consider, as being possibly the customary law on a particular
issue, a purely speculative suggestion completely unsupported by evidence.

(ii) If there is evidence fit to be left to a jury that the parties were married according to customary law the
onus would be on the prosecution to negative that suggestion. But it is not enough for an accused
simply to say "we are married" or even "we are married according to customary law"; he must at least
say "we are married according to customary law because we did this and this", and it would then be
for the prosecution to show that the events alleged (assuming they were accepted) did not constitute a
valid marriage according to customary law.

Further, the Marriage Act, Chapter 50 of the Laws of Zambia, also recognises the validity of
customary marriage under section 38 which reads:
“Any person who contracts a marriage under this Act, being at the time
married inaccordance with African customary law to any person other than
the person with whom such marriage is contracted shall be guilty of an
offence and liable on conviction to imprisonment for a period not exceeding
five years.”

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 Additionally, section 12(1)(a) of the Local court Act Chapter 27 of the Laws of Zambia provides that
the local court shall administer the African customary law applicable to any matter before it in so far as
such law is not repugnant to natural justice or morality or incompatible with the provisions of any written
law.

Furthermore, Section 34(1) of The High Court Act Chapter 27 of the Laws of Zambia provides that
the Court may, in any cause or matter in which questions of African customary law may be material to
the issue call as witnesses thereto chiefs or other persons whom the Court considers to have special
knowledge of African customary law. Therefore, the court below misdirected itself because it did not call
assessor with knowledge of customary law to advice as it was stated in the case of Martha Mwiya V
Alex Mwiya(1977) Z.R. 113 (H.C.).

Therefore, in arriving at the decision that the High court made, the court should have paid regards to the
provisions of the Constitution because our client has a basic fundamental right to marry whoever he
chooses to marry in accordance with the Constitution whether under customary law or statutory law.

Therefore, it is not generally unlawful in Zambia for a man to have carnal knowledge of a girl under the
prescribed age if he is lawfully married to her. This was elaborated in the prominent case of R v
Chinjamba, where it was held and I qoute:

“it is not unlawful for a man to have carnal knowledge of a girl to whom he is
lawfullymarried despite the fact that she is under 16 years. Lawfully here means
that both the parents and the girl have consented to the marriage.”

Activity

With reference to cases and statutes, show how Customary Law has been treated in Zambia

Topic 2: Interaction and Non-Applicability of Customary Law

No application of customary law is dependent on the domestic legislation in a particular [Link] adjective
law limits the application of customary law that is repugnant or contradicts the written law. A dispute based

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on customary law must be commenced in the local court and is only heard by the higher courts, the court of
record, upon review or appeal.

Customary law today is very different from what it was in pre-colonial times. Then it is very informal and
tended to flow from tribal chiefs as an adjunct of their personal stature and political power. It was very
flexible and varied from tribe to tribe. Since colonisation, it has become somewhat static, particularly where,
it has been applied by the courts; however, it has not evolved to capture effectively the social-economic
development of modern living in Zambia. Hence, although it is applicable to the great majority of the people,
its authority is unclear and it is not studied in the school of law.

Customary law is expected to change and embrace more general principles and practices pertaining under the
written law.

Its non application is seen under section 12(1)(a) of the Local court Act Chapter 27 of the Laws of
Zambia which provides that the local court shall administer the African customary law applicable to any
matter before it in so far as such law is not repugnant to natural justice or morality or incompatible with the
provisions of any written law.

Additionally, in Munalo V Vengesai(1974) Z.R 91, the court refused to apply English law to distribute the
deceased property because the parties were married under shona customary law. Doyle C.J as he was then
stated that since the parties were married under Shona customary law, the parties should use Shona
customary law to distribute the property. Hence customary law is valid and can be practiced so long it is not
repugnant to natural justice or morality and in this case it was not

Therefore, the interaction is between the received law and the customary law that we have. If there is valid
acceptable law within national law then received law will not be used.

Activity

Discuss how Customary Law has found its way in the domestic legislation and show
the only reason it is kept

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Topic 3: Customary Law at International Law

International human rights law has also provided for cultural practices and how they are to be treated. At the
international level, it is important to note that many instruments recognise the application and relevance of
African customary law. Article 22 of the Universal Declaration of Human Rights (Universal Declaration)
states that:
“Everyone, as a member of society … is entitled to the realisation of the economic,
social and cultural rights indispensable for his dignity and the free development of his personality”.

Further, article 27(1) provides:

“Everyone has the right to freely participate in a cultural life of the community,
to enjoy the arts and to share in scientific advancement and its benefits”.

As a declaration, the Universal Declaration is a non-binding instrument that merely states the aspirations of
nation states. However, it is submitted that it has become part of binding international law in Malawi.
Reasons that can be advanced to substantiate this point are twofold. First, the standards laid down in the
Universal Declaration were re-enacted in two conventions that are binding on states. These are International
Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights.
They respectively, provide for the protection of cultural rights. Note that Zambia has ratified both these
conventions.

Activity

Discuss customary Law as enshrined in the international instruments and show its
relevancy with regards to Human Rights

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UNIT 7: STATUTORY INTERPRETATION

Learning Objectives
At the end of this unit, you should be able:

 Discuss anatomy of a statute

 Explain the rules of statutory interpretation
 Explain other rules of statutory interpretation

Topic 1: Definition of a Statute

Gandhi has defined a statute to be an edict of the legislature. It is an established rule, formal regulation or
ordinance enacted by the legislature.
The language employed in the statute is the determinative factor of the legislative intent and the essence of
the law, as said lies in its spirit, not the etter. The letter is significant only as being the external manifestation
of the intention that underlies it. The duty of the judicature is to discover and act upon the intention of the
legislature.

Structure of a statute
Parliament in Zambia is supreme in as much as it has limited legislative powers, subject to the provisions of
the Constitution. If Parliament passes an Act which is contrary to certain provisions of the Constitution,
which does not comply with the provisions for changing the Constitution, then the courts would not enforce
those provisions in the Act which are unconstitutional.

Subject to this the courts cannot interfere with the power of Parliament to make law, and magistrates have to
apply the statutes even if they do not approve of their intentions or wording. A bill that has been though the
National Assembly and received the President's assent is a source of good law, however ill-conceived or
badly drafted it may be.

Courts are, however, frequently required to interpret the wording of an Act. It is often necessary for
magistrates to decide points were the meaning of the statute is doubtful and in some cases the interpretation
which they place on the words used in the statute can result in the intentions of Parliament being nullified.

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Judicial practice over many years, together with legislation interpretation acts has established certain general
principles of interpretation and the purpose of this Chapter is to set out brief details of the major principles.

Statutory provisions are to be found in the Interpretation and General Provisions Act, Chapter 2 of the
Laws of Zambia. This Act lays down certain definitions and rules of interpretation which are to be applied
to every written law unless a contrary intention appears in the Act or in the written law concerned.

Before embarking on a consideration of the general rules it will be useful to bear in mind the following
quotation from Kearney a d Co. Ltd v Taw International per Baron DCJ:

"There has obviously been a great deal of confusion as to both the nature of the
agreement in this case and the consequences that flow; the confusion has, I suspect,
'arisen because reliance has been laced on English textbooks and cases. English
authorities, and particularly those of the House of Lords, are of course of great
weight and assistance in Zambia in areas in which they are in point; but before
relying on English cases it is necessary to ensure that the legislation which was
under review in those cases corresponds to, or is relevant to, our legislation. "

Anatomy of a Statute

All laws made by Parliament are styled "Acts". Proposed Legislation is contained in a 'Bill' and its sub-
divisions are called 'clauses'. When a Bill has been enacted it becomes an Act and its sub-divisions are
called sections and sub-sections except the Constitution where the sub-divisions are call Articles.

Acts are numbered consecutively in the order in which they become Acts and the numbering begins
afresh at the beginning of each calendar year.

Bills are divided into the two classes of public and private ills. The former relate to matters of public
policy and are introduced directly by members of the National Assembly. A private bill is a bill intended
to affect or benefit some particular person, association, or corporate body as distinguish' from a measure
of public policy. Such bills are solicited by the parties themselves who are interested in their promotion
and are founded upon petitions deposited in accordance with the National Assembly Standing Orders.

An Act normally deals with one particular subject (although there are some "Miscellaneous Provisions
Acts and will contain various items set out as follows.

Title

An Act usually has two titles, a long title and a short title.

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Long title
The long title is placed immediately above the first, citation of an Act and is not so much a title as a brief
summary of the main objects of the Act. It is not used to refer to the Act.
Short title

This is always contained in the first section of the act and provides the official citation for the Act. It is
the title used when referring to the Act. When an Act is published for the first time, as supplement to the
Government Gazette, the title will always include the year of enactment.

Citation

Before an Act is incorporated into any revised edition of the Laws of Zambian it may be cited by its short
title or special citation, if any, by which it is made citable.

When the Act has been incorporated into the volumes of the Laws of Zambia, and given a Chapter (Cap.)
number, the year of enactment is dropped from the short title. The Act may then be cited either by short
title or by its chapter number in the revised edition of the laws.

A British Act may be cited by its short title, or citation, if any, by reference to the regnal or calendar year
in which it was passed and its chapter number.

Preamble

This is an introductory statement sometimes found at the beginning of an Act but it is now very rare. For
an example see the Constitution. Should a court have to deal with an old Act which has a preamble, in
which the main objects of the Act are set out, the preamble may be used as a legitimate aid, in construing
the enacted part.

Divisions of a Statute

An Act may be divided other than merely by sections and sub-section .Many Acts are divided into Parts:
the Penal Code is unusual in being divided into Parts, Divisions and Chapters. But whatever higher level
divisions there are, the sections will be numbered consecutively throughout the Act. Section may be sub-
divided into sub-sections, paragraphs and sub-paragraphs.

When a written law is divided into Parts, titles or other sub-divisions, the fact and particulars of such
divisions and subdivisions; with or without being expressly mentioned in such written law, are to be
taken notice of in all intents and for all purposes.
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In considering which parts of a statute may be used as aid construction, the words of enactment are to be
taken to extend to all sections the Act and to any Schedules, tables and other provisions contained in it.

Marginal Notes

These are notes printed at the side of a section in an Act and which purport to summarise the effect of
that section. In England they are not considered by Parliament and are not part of the Act and anyone
printing the Act may alter them as he thinks fit.

In Zambia, except for the "Objects and Reasons" on the front cover, the Bill appears in the exact form the
Act would take unless amended. Therefore, theoretically at least, Parliament has passed all parts of the
Bill, including marginal notes, headings, punctuation etc. In the National Assembly Standing Orders,
Order 104, there is a reference to the Clerk reading the marginal note during amendment to the Bill but
this is merely procedural and in practice little attention is paid to these points when debating the Bill.

Although they have sometimes been used as an aid to construction the modern view in England is that
marginal notes should not be so used, at least in a general Act of Parliament. However, it is permissible
to consider the general purpose of an Act and the mischief at which it is aimed with the marginal note in
mind.

Headings

In some Acts headings are prefixed to sections or groups of sections and they are regarded as preambles
to those sections. Approving this view, Farwell LJ added:

"Taking the doctrine so expressed as a guide in such a case I cannot read prefatory
words of this kind so as to strike out plain words, but only for the purpose of
explaining doubtful expressions in the body of the section."

Thus headings cannot control the plain words of title Act but they may help to explain ambiguities.

Schedules and Tables

Every Schedule to or table in any written law, together with notes thereto, are to be construed and have
effect as part of such written law. Schedules and tables are just as much part of a statute as any other part
and may be used in construing provisions in the body of the Act. However, where here is any
contradiction, the earlier enacting section would prevail over the Schedule.

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Provisos

The following quotation is taken from C E Odgers, “The Construction of Deeds and Statutes, fourth
edition, Sweet & Maxwell, London at page 224”. This book is recommended as a general guide to
judicial construction.

"These are clauses of exception or qualification in an Act, excepting something out of, or qualifying
something in, the enactment which, but for the provision, would be within it. These can generally be
identified by the words "Provided that" -or "this section does not apply to," etc. Unless of necessity, a
proviso is never construed as enlarging the scope of the enacting words. It must be construed with
reference to the preceding parts of the clause to which it is appended, and as subordinate to the main
clauses of the Act.

Punctuation

In England punctuation is disregarded in the construction of a statute although the rule does not appear to
be well settled in Zambia. Several Zambian cases have affirmed that the English rules of construction
apply yet it is also understood that punctuation in a Zambian Act may not be disregarded if to do so
would alter the meaning of the section. Zambian Acts are much more liberal in the use of punctuation
than English Acts.

In England, the manner in which a statute has been printed, e indentation of paragraphs and so on, is
considered part of punctuation; and so irrelevant. In Zambia, courts are required to take notice of the
division of a statute into parts, titles and other subdivisions for all purposes whatsoever.

On a strict construction this provision should apply to the main divisions of an Act and not to the layout
of a section; but the sweeping Language -"for all purposes whatsoever" -needs to be considered.

In summary it seems safe to say that in English Acts punctuation and layout should not be given undue
importance, but more notice lay be taken of them in Zambian Acts, unless to do so makes nonsense of the
statute.

Index and Arrangements of Sections

Although an index is a very useful addition to an Act, very few Acts have indexes. The Penal Code and
Criminal Procedure Code are notable exceptions.

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 All Acts have a chronological listing of sections at the front of the Act under the heading" Arrangement
of Sections" and although this is of much less utility than an alphabetical index, it does provide a quick y
of locating a particular topic in the Act.

Activity

Explain simply how a Statute is structured

Topic 2: Rules of Statutory Interpretation

The need for Statutory Interpretation

Where the words of a statute are absolutely clear the need for statutory interpretation will not arise, because
the persons affected by the statute will have no difficulty in conducting their affairs according to the statute.
However, where there is ambiguity or uncertainty interpretation is necessary.

a) Ambiguity is caused by an error in drafting where by the words used are capable of two or more
literal meanings.
b) Uncertainty is when the words of a statute are intended to apply to various factual situations and the
courts have to decide whether the case before them falls within the factual situations. Envisaged by
the Act. Uncertainty is far more than ambiguity.

There are three recognised judicial approaches to statutory interpretation. The approach chosen will depend
on the particular judge, to it is not possible to know in advance which will be used. They are known as
“Rules” although they are not rules in the accepted sense of the word.

The Literal Rule

This is the basic rule of interpretation. By the literal rule, words in a statute must be given their plain,
ordinary or literal meaning. The objective of the court is to discover the intention of Parliament as expressed
in the words used. This approach will be used even if it produces absurdity or hardship, in which case the
remedy is for Parliament to pass an amending statute.

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In Fisher v Bell (1961), the Restriction of Offensive Weapons Act of 1959, made it an offence to “offer for
sale” certain weapons including “flick knives”. A shop keeper who displayed these knives in his window was
not guilty of the offence, since although he had displayed the goods, accepted buyers offers, and sold the
goods he had not offered them for sale, because goods on display are not an offer to sale, they are an
invitation to treat.

One of the leading statements of the literal rule was made by Tindal CJ in the Sussex Peerage Case (1844)
11 Cl & Fin 85:
“… the only rule for the construction of Acts of Parliament is, that they should be
construed according to the intent of the Parliament which passed the Act. If the
words of the statute are in themselves precise and unambiguous, then no more can
be necessary than to expound those words in their natural and ordinary sense. The
words themselves alone do, in such case, best declare the intention of the lawgiver.

Additionally, Lord Esher in R v Judge of the City of London Court [1892] 1 QB 273 stated that:
“If the words of an Act are clear then you must follow them even though they lead to
a manifest absurdity. The court has nothing to do with the question whether the
legislature has committed an absurdity.”

In Whiteley v Chappell (1868) LR 4QB 147, a statute that was concerned with electoral malpractices made it
an offence to personate “any person entitled to vote” at an election. The defendant pretended to be someone
who had recently died in order to use that person’s vote. It was an offence to “personate any person entitled
to vote”. As dead people cannot vote, the defendant was held not to have committed an offence.

The personation was not of a person who was dead but for one who was alive and entitled to. A dead person
was not entitled to vote as he did not exist and therefore had no rights.

In Cutter v Eagle Star Insurance [1998] 4 All ER 417, the claimant was sitting in his friend’s car in a car
park and was injured when a can of lighter fuel exploded. The driver was insured, as required by the Road
Traffic Act of 1988, for injury caused while on a“road”. The House of Lords held that the car which was
parked was not on the road because a road provides for cars to move along it to a destination. Therefore, the
insurance company was not liable to pay out on the driver’s policy because the claimant had not been injured
due to the use of the car on a “road”.

In the Zambian case of Mutalev Attorney-General(1976) Z.R. 139 (H.C.), the applicant applied for leave
to issue a writ of habeas corpus. He sought a declaration that his detention made under regulation 33 (1) of
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the Preservation of Public Security Regulations, Chapter 106, was unlawful by reason of the fact that the
detaining authority had not complied with Article 27 (1) (a) of the Constitution which required the applicant
to be furnished with a statement in writing specifying in detail the grounds upon which the applicant was
detained.

The statement of grounds furnished to the applicant read: " That between 1st January, 1971, and 11th
December, 1973, you conspired with other persons in Zambia to commit crimes and that you organized and
managed the commission of serious crimes in Zambia which acts areprejudicial to the security of the
Republic of Zambia. "

It was not disputed that on the 9th September, 1974, the applicant was convicted by the High Court on three
counts of aggravated robbery and sentenced to twenty-five years' imprisonment to run concurrently. The
applicant appealed to the Supreme Court and on the 18th February, 1975, the appeal was allowed on the
basis that the trial judge had misdirected himself. The applicant was not released from custody and on the
19th February, 1975, he was served with a detention order signed by an Assistant Superintendent of Police
exercising his powers under regulation 33 (6) of the Preservation of Public Security Regulations. That order
was revoked on the 25th February, 1975, and on this very day the applicant was also served with a detention
order signed by His Excellency the President in the exercise of his powers under regulation 33 (1) of the
Preservation of Public Security Regulations. On the 28th February, 1970, the detaining authority served the
applicant a statement in writing of the grounds upon which the applicant was detained.

Held:

(i) In construing a statute words should be taken in their literal meaning which is not necessarily the
dictionary sense but the sense in which the words are used in common parlance, i.e. the popular sense.

(ii) The phrase "specifying in detail" in Article 27 (1) (a) of the Constitution means that the detaining
authority must furnish sufficient information which should enable the detainee to direct his mind to it
when making his representations.

(iii) Parliament has placed a duty upon the detaining authority to give sufficient information which would
enable the detainee to know what is being alleged and to bring his mind to bear on it. This duty is
mandatory.

(iv) The grounds furnished to the applicant are so vague that he cannot make meaningful representations
to the detaining authority or tribunal.

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Detention declared unlawful

Another Zambian case is Friday J.M. Ngwira v Zambia National Insurance Brokers Limited (1994) S.J.
57 (S.C.), where the issue was among other thing the words 'social status' under the Act. The appellant was
charged with negligence resulting in the loss of company property and gross abuse of office, the particulars
of which were that he, being head of personnel and administration, manipulated the tender procedure for
several company vehicles to some members of staff at unrealistic low prices thereby occasioning financial
loss to the company. There was also a further charge of having submitted a tender on behalf of the General
Manager at an unrealistic low price without his instructions. A disciplinary committee found that the
appellant had been guilty as charged and recommended that he be dismissed. The Managing Director,
however, changed the punishment to ordinary termination of services, which meant that the appellant was
able to receive some benefits on termination of contract which would otherwise have been [Link] an action
before the Industrial Relations Court, the court refused to order reinstatement of the appellant and he
appealed.

Held:
(i) The word “social” relates to “society” and the expression “social status” means a person’s standing in
society generally, not his standing in an employers’ organisation.

The Golden Rule

This comes into use after failing to find a remedy under the literal rule. It is said that the literal must be taken
or followed unless to do so produces an absurd result. Where a statute permits two or more literal meanings
application of the golden rule is not inconsistent with the literal rule. Since the literal rule cannot be applied
in such cases. However in rare cases, a judge will apply the golden rule to a statute which has only one literal
meaning. In its second, broader sense, the court may modify the reading of words in order to avoid a
repugnant situation.

Thus the golden rule provides that if the words used are ambiguous the court should adopt an interpretation
which avoids an absurd result.

In Re Sigsworth (1935) Ch 89, the son murdered his mother and later committed suicide. She did not have a
will and he stood to inherit her estate as next of kin, by being her “issue”. The courts were required to rule on
who then inherited the estate: the mother's family, or the son's descendants. There was never a question of the

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son profiting from his crime, but as the outcome would have been binding on lower courts in the future, the
court found in favour of the mother's family. The court applied the golden rule and held that “issue” would
not be entitled to inherit where they had killed the deceased. Therefore, the golden rule was applied to
prevent a murderer from inheriting on the intestacy of his victim although he was, as her son, her only heir
on a literal interpretation of the Administration of Intestate Act1925. This became known as “Lord
Wensleydale’s golden rule.

Therefore, the court was of the view that no one should profit from a crime, and so used the golden rule to
prevent an undesirable result, even though there was only one meaning of the word “issue.”

The golden rule may be criticized as being subjective, since a judge who decides that a literal interpretation is
absurd, and therefore contrary to the intention of parliament, must be ascertaining the intention of parliament
from a source other than a statute itself. This is strictly speaking beyond his junction.

Additionally, Lord Wensleydale, in Becke v Smith (1836) 2 M&W 195 where he stated thus:
“It is a very useful rule in the construction of a statute to adhere to the ordinary meaning
of the words used, and to the grammatical construction, unless that is at variance with
the intention of the legislature to be collected from the statute itself, or leads to any
manifest absurdity or repugnance, in which case the language may be varied or modified
so as to avoid such inconvenience but no further.”

Twenty years later, Lord Wensleydale restated the rule in different words in Grey v Pearson (1857) 6 HL
Cas 61, 106; 10ER 1216, when he stated:

“[I]n construing statutes, and all written instruments, the grammatical and ordinary sense of the
words is to be adhered to, unless that would lead to some absurdity or inconsistency with the rest of
the instrument, in which case the grammatical and ordinary sense of the words may be modified, so
as to avoid that absurdity or inconsistency, but not farther.”

In the Zambia, the case ofAttorney General and the Movement for Multi-Party Democracy V.
Lewanikaand Four Others, SCJ Judgement No. 2 of 1994is an authority. In this case, the respondents
were members of the MMD. On the 31st October 1994 they stood for elections on MMD ticket. They won
elections and took their seats in Parliament but later resigned from MMD. Consequently, the National
Secretary of MMD wrote to the speaker informing him that the respondents were no longer members of the
Party.

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Later the speaker wrote to them in terms of Article 71(2) of the Constitution to the effect that they ceased to
be members of the National Assembly with effect from 13thAugust 1993 a date when the National Secretary
gave notification to the speaker. The respondents petitioned the Attorney General that although they had
resigned from the party on whose ticket they won elections they were still members of Parliament and asked
court to declare the decision of this speaker null and void.

It was held in this case that Article 71(2)(C) of the constitution is discriminatory in itself against an
independent member who joins any party and against a member who resigns from one party and joins
another. It is discriminatory of the court to make it reasonable as it offends against Article 23 of the
Constitution.

An appeal was made from the decision of the High Court (Mambilima) against portion of Judgment which
applied the literal interpretation to article 72(2) of the 1991 Constitution. One of the arguments by the
respondents was that by employing the literal meaning the purpose for introducing this legislation by
parliament would be defeated.
The judge saw no ambiguity in Article 71(2)(c). The judge propounded that if a member leaves the party on
whose the ticket he has was elected and joins another party then he loses his seat. The partners had vacated
the seats on the date when they had announced their resignation from MMD, the party on whose tickets they
were elected.

The Mischief Rule

Where an Act is passed to remedy a mischief the court must adopt the interpretation which will have the
effect of remedying the mischief in question. For example the British Affiliation Proceedings Act of 1957
has words like a single “woman”. This has been interpreted to include not only unmarried woman, but any
woman with no husband to support her, because the mischief which the act was passed to remedy was the
possibility of a woman having an illegitimate child with no means of supporting it.

The mischief rule is contained in Heydon's Case (1584) 3 Co Rep 7, and allows the court to look at the state
of the former law in order to discover the mischief in it which the present statute was designed to remedy.
The court stated that for the true interpretation of all statutes four things are to be considered:

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1. What was the common law before the making of the Act?

2. What was the mischief and defect for which the common law did not provide?

3. What remedy Parliament resolved and appointed to cure the disease?

4. The true reason of the remedy; and then the function of the judge is to make such construction as shall
suppress the mischief and advance the remedy.

This rule was shown in Smith v Hughes (1960) 2 All ER 859, were Six women had been charged with
soliciting “in a street or public place for the purpose of prostitution”. However, one woman had been on a
balcony and others behind the windows of ground floor rooms. The court held they were guilty because the
mischief aimed at people being molested or solicited by prostitutes.

Another good case is DPP v Bull [1994] 4 All ER 411, where a man had been charged with loitering or
soliciting in a street or public place for the purpose of prostitution. The court held that the term “prostitute”
was limited to female prostitutes. The mischief the Street Offences Act 1959 was intended to remedy was a
mischief created by women.

Additionally, inCorkery v Carpenter [1951] 1 KB 102, the appellant, while pushing his pedal bicycle along
a road, was drunk and incapable of having proper control over the bicycle. He was arrested without warrant
and charged with “being drunk in charge of a bicycle on a highway, contrary to s 12 of the Licensing Act,
1872,” which provides that “every person … who is drunk while in charge on any highway or other public
place of any carriage … may be apprehended”, and shall be liable to a penalty.

It was held that a person could be arrested if found drunk in charge of a “carriage” on the highway. The
defendant had been arrested for being drunk in charge of a bicycle on the highway. The court held that a
bicycle was a “carriage” for the purposes of the Act because the mischief aimed at was drunken persons on
the highway in charge of some form of transport, and so the defendant was properly arrested. The word
“carriage” in s 12 was wide enough to include a bicycle, and, therefore, the appellant was guilty of an offence
under the section.

It is therefore imperative to note that the statute must be read as a whole and each section must be read in the
light of every other section, especially an interpretation section. It is also shown for example where a
criminal statute is uncertain and ambiguous it is generally interpreted in favour of the individual.

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In R v Hallan (1957), it was held that the offence of knowingly possessing an explosive required the accused
to know, not only that the possessed the substance, but also that it was explosive.

Activity

1. Discuss the rules of statutory Interpretation and show their relevancy in application
2. Show the development of the Mischief rule and explain if the intention of Parliament is
secured when it is been used
3. Critically read the cases under this unit and discuss if you could come up with the same
decision today

Topic 3: Other rules of Statutory Interpretation

ExpressioUniusEstExclusioAlterius

This is a latin phrase which implies that the “the expression of one thing suggests the exclusion of others”.
It asserts that where a general term follows a series of specific terms, the general term is interpreted to
include only things of the same kind, class, character, or nature as those specifically enumerated.

Under this rule, were specific words are used and are not followed by general words. For example where a
statute is repealed, there is a presumption that other relevant statutes not mentioned are not repealed.

In the case of R vs. Immigration Appeals Adjudicator Exparte Crew (1982), the immigration’s appeal
tribunal had a task to interpret the Immigration Act of 1971. Here the tribunal ruled that a woman, who was
born in Hong Kong of a Chinese mother and a putative English father, was not entitled to a certificate of
partiality. (A certificate allowing immigration). There was an appeal to the court of appeal where the so
question was whether the word “parent” used in the 1971 Act included the falter of an illegitimate child. The
father in this case was unknown. Held that since the definition section in the 1971 act specifically mentioned
the mother alone in the context of an illegitimate child, the rule expression unius est. exclusioalterius saved
to exclude the father of an illegitimate child for these purposes as “parent”. The appeal was dismissed.

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Noscitur A Sociis or the Context Rule
The meaning of one word can be gathered from its context. Under this rule, words of doubtful meaning may
be better understood from the nature of the words and phrases with which they are associated.

The most vital rules for the interpretation of statues are those suggested by common sense. The judge may
look up the meaning of a word in a dictionary or technical work, but the ordinary meaning may be controlled
by the particular context. This rule, requiring regard to be had to the context, is sometimes expressed in a
latinmaxim Noscitur a sociis, which means “a word may be known by the company it keeps”.

One may look not only at the rest of the section in which the word appears but at the statute as a whole and
even at earlier legislation dealing with the same subject matter, for it is assumed that when parliament passed
an Act, it probably had the earlier legislation in mind and probably intended to use words with the same
meaning as before.

In the case of Muir vs. Keay (1875), one of the sections of the Refreshment Houses Act of 1860 stated that
all houses, rooms, shops or buildings kept open for public refreshment during certain hours of the night for
entertainment purposes must be licensed. The defendant had premises called “the cafe” and certain persons
were found there during the night when the cafe was open. They were being supplied with cigars, coffee and
ginger beer which they were seen to consume. The justices convicted the defendant because the premises
where not licensed. He appealed suggesting that a license was required only if “entertainment” in terms of for
example music or dancing was going on. The division court applied the noscitur a sociis rule.

After considering it, they court held that “entertainment” because of the context in which it appeared in the
context of 1860 Act meant matters of bodily comfort and not matters of mental enjoyment such as theatrical
(musical) performances with which the word entertainment is so often associated in other context. The
justices were therefore right to convict.

In Foster v DiphwysCasson (1887) 18 QBD 428, it involved a statute which stated that explosives taken
into a mine must be in a “case or canister”. Here the defendant used a cloth bag. The courts had to consider
whether a cloth bag was within the definition. Under noscitur a sociis, it was held that the bag could not have
been within the statutory definition, because parliament’s intention was referring to a case or container of the
same strength as a canister.

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In NtombizineMudenda v The Attorney-General (1979) Z.R. 245 (H.C.), therewas an application for a
writ of habeas corpus ad subjiciendum. The applicant was detained under reg. 33 (1) of the Preservation of
Public Security Regulations and was served with the following grounds of detention.

"That you on unknown dates but during the year 1978 and October, 1979 in collusion
with others yet unknown indulged in the illegal and illicit trafficking in precious stones
like emeralds".

Counsel for the applicant contended that the grounds of detention were too general, imprecise and vague and
that the detention was punitive and could not therefore have been made for the preservation of public
security. He submitted that the State could have brought a criminal prosecution against the applicant since
the offence was laid down under the Penal Code. Lastly he argued that the words "like emeralds" are vague
as these might be interpreted to mean precious stones, which are similar to emeralds, in respect of which
being in possession of, or trafficking in, would not ground a detention order.

It was held that the meaning of the word "like" in the context in which it was used meant that the precious
stones were the "same as" or "similar to" emeralds. Hence, it was not misleading to use the phrase "like"
emeralds.

The detaining authority has a discretion either to detain or to institute criminal prosecution.

The Ejusdem Generis

Ejusdem generis is a rule of statutory interpretation that was extended to the interpretation of contracts. The
rule of interpretation applies where several words precede a general word - commonly lists of words. The
meaning of the general word is restricted to the meaning of the preceding words, with the effect that the
general word does not expand the beyond the subjects or classes of the preceding words.

For instance, where an exclusion clause in an insurance contract states that liability will be excluded by
damage caused by "acts of god, flood, fire or otherwise", the term "otherwise" relates only to damage of the
same class as the preceding words. Thus the clause would not exclude liability for damage caused by riots,
but may do for damage caused by gas leaks.

Additionally, in a statute forbidding the concealment on one’s person of “pistols, revolvers, derringers, or
other dangerous weapons,” the term “dangerous weapons” may be construed to comprehend only dangerous
weapons of the kind enumerated, i.e., firearms, or perhaps more narrowly still, handguns. The term "ejusdem
generis" may be read as "of the same class".
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The effect of the rule of interpretation is usually circumvented in contracts by use of the words, "without
limitation" or "without limit".

Hence, a word is known by the company it keeps and when a word is ambiguous, its meaning may be
determined by reference to the rest of the statute.

The Fringe Meaning Rule-Interpretation in the Light of Policy

The fringe meaning rule has been given a lot of interpretation, but one recognized interpretation is the one
given by Margaret Munalula in her book “Legal Process: Cases and, statutes and materials”. She asserts that
the words used, though they have a central core of meaning that is relatively fixed, have a fringe of
uncertainty when applied to the infinitely variable facts of experience. For example, the general notion of a
‘building’ is clear, but a judge may not find it easy to decide whether a temporary wooden hut, or a telephone
kiosk, or a tent, is a ‘building’. In problems like this, the process of interpretation is indistinguishable from
legislation: the judge is, whether he likes it or not, a legislator. For if he decides that the wooden hut is a
building, he is in effect adding an interpretation clause to the statute which gives building an extended
application; whereas if he decides that the hut is not a building, he adds a clause to the statute which gives it
a narrower meaning. The words of the statute as they stand, do not give an answer to the question before the
judge; and the question is therefore legislative rather than interpretative. This simple truth is rarely perceived
or admitted: almost always the judge pretends to get his solution out of the words of the Act, though he may
confess in so doing to be guided by its general policy. The rational approach would be to say candidly that
the question, being legislative, must be settled with the help of the policy to implicit in the Act, or by
reference to convenience or social requirements or generally accepted principles of fairness.

This kind of ‘interpretation’ may be legally and socially sound although it reaches results that would surprise
the lexicographer.

In Attorney General V Steven Lunguru, SCZ Judgement No. 20 of 2001, the respondent was a Tanzanian
national employed in the Zambia civil service. After his request to buy the house as a sitting tenant was
rejected he brought an action before the lands tribunals, which ordered the sale of the house to him within a
specified period. On appeal a number of issues were raised including the interpretation of the Preamble.

Judge Chibesakunda in her judgment attributed that the tribunal did not consider the meaning of the
Preamble. The tribunal ignored the spirit of empowering Zambians to acquire their own houses. The tribunal
thought that so long as you are a civil servant and a sitting tenant and so long as you qualify under reg. 3 of

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the Local Government and Housing and the University of Zambia circular on the sale of houses, the intention
of government becomes very clear. The intention was to empower Zambians who were sitting tenants to
purchase pool houses. The tribunal misdirected itself and erred in ignoring the Preamble.

Activity

1. Show at what point other rules of statutory interpretation may be called upon to
construe a wording?
2. Explain the relevance of other rules to statutory interpretation
3. Compare with the case of Attorney General V Steven Lunguru, SCZ
Judgement No. 20 of 2001 andNtombizineMudenda v The Attorney-
General (1979) Z.R. 245 (H.C

Topic 4: Presumptions
A presumption may be regarded as an application of the second [principle under the golden rule] but is best
stated on its own. In interpreting statutes, various presumptions may be applied, all of which are of a negative
or restrictive character. They are the background of legal principles against which the Act is viewed, and in
the light of which Parliament is assumed to have legislated without being expected to express them.

Here are a few presumptions that consideration should be given to:

The legislature does not make mistakes

The legislature does make mistakes but it is not for the courts to correct them. What Parliament enacts is to
be presumed correct and administered accordingly.

If a mistake is obvious, ego one of spelling, then the meaning should be clear in spite of it; if so then it can be
ignored. But if a mistake has been made which, as it stands, clearly makes the law different from the one
intended by Parliament, it is not for the court to legislate and correct the mistake but to apply the law as it
(mistakenly) stands.

As an example of this, in section 267 of the Penal Code, third line from the bottom, the Act was originally
printed with the words "the person for whom" As the Penal Code was based on the Indian Penal Code and
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others, and in the context of the associated sections, it was immediately clear that the ‘for’ should have read
'from'. However, the section was enforced as it stood (which had the opposite effect to that intended) until it
was amended by statute in 1968.

But see R v CorbyJuvenile, the Court where the court was able to find a presumption that the intention of
the legislature was that errors were to be rectified by the court.

The legislature knows the practice

One aspect of this has been mentioned in relation to clarifying ambiguities in the light of established practice.
The other aspect relates to interpreting words like' inquiry', 'meeting' etc where the usual incidents,
procedures an practice will be regarded as implied.

Inconvenient or unreasonable legislation not intended

It is to be assumed that Parliament did not intend a law to be unreasonable in its effect: "If an enactment is
such that by reading it in its ordinary sense you produce a palpable injustice, whereas by reading it in a sense
it can bear, though not exactly its ordinary sense, it will produce no injustice, then I admit one must assume
that the legislature intended that it should be so read as to produce no injustice. Nevertheless, many statutes
are inconvenient in their effect and if the language of the Act is unequivocal then it must be so enforced.

Law should be just

Where an apparently unfettered discretion is conferred by statute on a public authority it is to be inferred that
Parliament intended the discretion to be exercised in a just manner.
It has been held that where an authority which has a discretion to act gives no reason for such action, it is
open to a court to infer that he has no good reason. I would agree with this as a general proposition.

Statutory powers and duties tended to be exercised in conformity with Constitution

There is an implication that the legislature intended statutory powers and duties to be exercised in conformity
with constitutional provisions laying down human rights.

Ordinary sense of words

Words are presumed to be used in their ordinary sense.

Same meaning throughout the act

The same meaning is usually attached to the same expressions throughout the Act.
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Changes in existing law

It is to be presumed that the legislature does not intend to change the existing law unless such an intention is
clearly expressed.

This has been mentioned in relation to consolidating and codifying statutes. In other cases it is considered to
be highly improbable that Parliament would change the general system of law without expressing its
intention with unmistakable clearness.

A statute is not to be taken as effecting a fundamental alteration in the general law unless it uses words which
point unmistakably to that conclusion.

International law

It is presumed that a statute is not intended 'to violate the principles of international law. However, states can
enact such laws if they so wish.

Mens rea in statutory offences

Where an offence is created by statute and only such offences exist in Zambia the requirement for mens rea
may be expressly included or expressly excluded; in such cases there is unlikely to be any difficulty. But
where mens rea is not expressly mentioned the question for the, court is whether it is an element of the crime
or not; in other words, is the crime one of strict liability or not.

There are two possible approaches; that mens rea is required unless excluded by necessary implication; or
that mens rea is no required unless included by necessary implication. The trend in recent years has been
towards the second view.

"There is a presumption that mens rea, or evil intention, or knowledge of the wrongfulness of the act, is an
essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the
statute creating the offence or by the subject-matter with which it deals, and that must be considered..,

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In spite of changes in approach over the years the above view has been re-affirmed by the House of Lords in
Sweet V Parsley, that:

".., whenever a section is silent as to mens rea there is a presumption that in order to
give effect to the will of Parliament, we must read in words appropriate to require mens
rea;" and . ..it is a universal principle that if a penal provision is reasonably capable of
two interpretations, that interpretation which is most favourable to the accused must be
adopted."

In order for a court to hold (in the absence of clear indications that an offence is one of strict liability the
court must come to the conclusion that the requirement for mens rea is a necessary implication and this must
be based on appropriate reasoning backed by relevant authority. The matters which should be considered are:

(1) The form of words used.

(2) The subject matter of the offence.

(3) Whether the requirement for mens rea would render the law unenforceable.

(4) Whether the accused was in a position to avoid the offence by any act on his part or whether the
consequences were entirely outside his control.

(5) The social implications involved.

Retrospective legislation

Upon the presumption that the legislature does not intend what is unjust, rests the reluctance to making
unlawful that which was lawful when done. This principle has statutory foundation in Zambia:

"No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at
the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence
that is severer in degree or description than the maximum penalty that might have been imposed for that
offence at the time when it was committed."

Contradiction of existing statutes

The legislature is presumed to have no intention of contradicting existing law. If there are two inconsistent
enactments in the same statute (or different statutes) it should be considered whether one cannot be read as
qualification of the other. Alternatively it may be possible to regard the two apparently conflicting provisions
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as dealing with distinct matters or situations. If neither of these courses is possible, then the general rule is
that the latter enactment will override the earlier.

Activity

Discuss the legal effect of presumptions at law

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UNIT 8: LEGAL WRITING AND COMMUNICATION
Learning objectives

At the end of this unit, you should be able:

 Explain what communication is and the methods of communications

 Discuss the objective of communication
 Discuss the effective modes of communication
 Explain legal writing
 Discuss the role of a lawyer in society
 Explain the Zambia legal profession

Topic 1: Law and Communication

In the history of the legal profession, communication has been one of the vital tools that is needed for cases
to be handles profusely, for court trials to go on well and for every user to understand what is under review.

Communication is said to be the process of transmitting information from one point to another. It is the
ability to share information with people and to understand what information and feelings are being conveyed
by others. It is a two way process and can take many forms which include verbal and non-verbal ones.

Communication includes a broad range of actions which help lawyers to work more effectively with their
clients. The ability of a lawyer to contribute to the achievement of the firm’s or organisation’s objectives will
depend on his/her legal communication.

Methods of Communication

The method used in communication varies depending on your context, purpose and audience that an
individual has. It also depends on among other things, and audience. The communication mediums used
include:

• Speaking
• Listening
• Writing
• Reading
• Non-verbal

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Speaking, writing and reading can be categorized under what is referred to as verbal communication, i.e.
where words of a language are used in communicating. Non-verbal communication on the other hand
involves the use of means other than words of a language. These include gestures, posture, facial
expressions, signs and vocalizations.

The objectives of Communication

It is imperative to note that whether one is writing or speaking, trying to persuade, inform, entertain, explain,
convince or educate or any other objective behind the particular communication engaged in, the general
objectives are four:

• To be understood
• To understand others
• To be accepted
• To get action or to initiate action or change of behavior or attitude.

Modes of Effective Communication

Some factors to consider in order to communicate effectively:
In view of the importance and pervasiveness of communication in a firm, court, class or organizations, it is
vital that one outlines some factors that are needed to consider in order to communicate effectively. These
include:
a) Purpose
To communicate effectively, one must ask himself or herself the purpose of the communication. It is
to note if it’s to inform, to persuade, to discharge or to reprimand.

b) Audience
You must try and understand your audience, look at the social cultural background, their education
and the attitude.

c) Method
It is essential after putting into consideration the purpose and audience to know if you shall used
spoken, written or non-verbal communication.

d) Language
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 Language can be determined after you realize the audience you shall have. Know the language to use,
what level and what words are to be used.

e) Organisation of ideas
The organisation of ideas is also vital when trying to make the audience understand you. One must
put his ideas in the order of importance, or in a chronological order of importance.

f) Approach
It is vital for one to also know or familialise oneself to whether he or she will use the formal or
informal way of communication.

Activity

1. Show the end result of communication

2. Explain what one can do to effectively communicate

Topic 2: Legal writing and Law

Legal writing is a type of technical writing used by lawyers, judges, legislators, and others in law to express
legal analysis and legal rights and duties. Legal writing in practice is used to advocate for or to express the
resolution of a client's legal matter.

Distinguishing features of legal writing

Authority

Legal writing places heavy reliance on authority. In most legal writing, the writer must back up assertions
and statements with citation to authority. This is accomplished by a unique and complicated citation system,
unlike that used in any other genre of writing. Note that different methods may be used in different states.

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Precedent
Legal writing values precedent, as distinct from authority. Precedent means the way things have been done
before. For example, a lawyer who must prepare a contract and who has prepared a similar contract before
will often re-use, with limited changes, the old contract for the new occasion. Or a lawyer who has filed a
successful motion to dismiss a lawsuit may use the same or a very similar form of motion again in another
case, and so on. Many lawyers use and re-use written documents in this way and call these re-usable
documents templates or, less commonly, forms.

Vocabulary

Legal writing extensively uses technical terminology that can be categorised in four ways:

a) Specialized words and phrases unique to law, e.g., tort, fee simple and novation.
b) Quotidian words having different meanings in law, e.g., action (lawsuit), consideration (support for a
promise), execute (to sign to effect), and party (a principal in a lawsuit).
c) Archaic vocabulary: legal writing employs many old words and phrases that were formerly quotidian
language, but today exist mostly or only in law, dating from the 16th century; English examples are
herein, hereto, hereby, heretofore, herewith, whereby, and wherefore.
d) Loan words and phrases from other languages: In English, this includes terms derived from French
estoppels or voir dire and latin words like certiorari, habeas corpus, prima facie, inter alia, mens rea,
sub judice.

Formality
These features tend to make legal writing formal. This formality can take the form of long sentences,
complex constructions, archaic and hyper-formal vocabulary, and a focus on content to the exclusion of
reader needs. Some of this formality in legal writing is necessary and desirable, given the importance of
some legal documents and the seriousness of the circumstances in which some legal documents are used. Yet
not all formality in legal writing is justified. To the extent that formality produces opacity and imprecision, it
is undesirable. To the extent that formality hinders reader comprehension, it is less desirable. In particular,
when legal content must be conveyed to non lawyers, formality should give way to clear communication.

What is crucial in setting the level of formality in any legal document is assessing the needs and expectations
of the audience. For example, an appellate brief to the highest court in your jurisdiction calls for a formal
style this shows proper respect for the court and for the legal matter at issue. An interoffice legal

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memorandum to a supervisor can probably be less formal though not colloquial because it is an in-house
decision-making tool, not a court document. And an email message to a friend and client, updating the status
of a legal matter, is appropriately informal.

Transaction documents and legal drafting tend to fall on a similar continuum. A 150-page merger agreement
between two large corporations, in which both sides are represented by counsel, will be highly formal and
should also be accurate, precise, and airtight. A commercial lease for a small company using a small office
space will likely be much shorter and will require less complexity, but may still be somewhat formal. But a
proxy statement allowing the members of a neighborhood association to designate their voting preferences
for the next board meeting ought to be as plain as can be. If informality aids that goal, it is justified.

Categories of legal writing

Legal writing is set in two broads:

 Legal analysis and,
 Legal drafting.

Legal analysis is catergorised into predictive and persuasive analysis. In most law schools, students must
learn legal writing and its importance.

Predictive legal analysis

The legal memorandum is the most common type of predictive legal analysis; it may include the client letter
or legal opinion. The legal memorandum predicts the outcome of a legal question by analyzing the
authorities governing the question and the relevant facts that gave rise to the legal question. It explains and
applies the authorities in predicting an outcome, and ends with advice and recommendations. The legal
memorandum also serves as record of the research done for a given legal question.

Persuasive legal analysis

The persuasive document, a motion or a brief, attempts to persuade a deciding authority to favorably decide
the dispute for the author's client. Motions and briefs are usually submitted to judges, but also to mediators,
arbitrators, and others. In addition a persuasive letter may attempt to persuade the dispute's opposing party.

Persuasive writing is the most rhetorically stylized. So although a brief states the legal issues, describes
authorities, and applies authorities to the question as does a memorandum the brief's application portion is

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framed as an argument. The author argues for one approach to resolving the legal matter and does not present
a neutral analysis.

Legal drafting
Legal drafting creates binding, legal text. It includes enacted law like statutes, rules, and regulations; a
contract, personal legal documents like wills and trusts, public legal documents like notices and instructions.
Legal drafting requires no legal authority citation, and generally is written without a stylised voice.

Activity

1. What are the vital features of legal writing?

2. Classify legal writing

Topic 3: Role of a Lawyer in Society

In modern society, lawyers surely fill an important role that no other professional fills. The lawyer is the
guardian of the rule of law, the ideal that all people stand equally before the law and neither expect nor
receive special treatment from it. In emerging democracies, this role is especially important for lawyers, who
have the potential to become the great levelers between the powerful and the less so. To be sure, the market
for lawyer services, even in the most well-established democracies, is tilted sharply toward the corporate
world and toward those with means. But guarantees of the right to counsel in criminal matters, government
funded legal aid for the poor, and pro bono activities of private lawyers, all combine to create some promise
that the most important matters affecting the poor and the powerless will also be served by lawyers and the
legal profession.

Lawyers obviously play different roles depending on their place in the legal profession and the nature of their
law practice or activity. Judges and prosecutors have fundamentally different roles from those of private
lawyers. But even within the ranks of those we would usually call “lawyer,” different practice settings shade
the lawyer’s role in different ways. Criminal defense lawyers have special responsibilities and duties; in-
house corporate lawyers the same; lawyers for government agencies serve somewhat different interests than
do private lawyers. Always consider the particular place of a lawyer in society when considering that
lawyer’s proper course in a given circumstance.

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The role of lawyer, of course, will vary from one legal system to another. But some generalities can be
drawn. Lawyers bring the law to non-lawyers by advising clients and by drafting documents that make
clients’ transactions work to serve the clients’ interests within legal constraints. Lawyers make the system of
justice work. Their role is more active in the litigation process in common law countries, to be sure, but in
civil as well as common law countries, the lawyer plays a crucial role in operating the system of justice,
shepherding cases through the system. Lawyers play an important role in law making as well. Many lawyers
serve in legislatures and parliaments and often lawyers are called upon to advise parliaments on the details of
new laws.

A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system
and a public citizen having special responsibility for the quality of justice. As a representative of clients, a
lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of
the client’s legal rights and obligations and explains their practical implications. As advocate, a lawyer
zealously asserts the client’s position under the rules of the adversary system. As negotiator, a lawyer seeks a
result advantageous to the client but consistent with requirements of honest dealings with others. As an
evaluator, a lawyer acts by examining a client’s legal affairs and reporting about them to the client or to
others.

Activity

Do we need a lawyer in society?

Topic 4: Legal Profession and Its Officers

The legal profession is an important institution in the administration of justice in that it empowers legal
practitioners with flair and skills to meaningfully plead and act on behalf of the suitors. Equally, the legal
profession prepares and equips professional adjudicators for the task of administering justice.

Law Association of Zambia

The Law Association of Zambia is a professional organization bringing together more than 900 legal
practitioners. The Association was founded in 1973 and brings together all practicing members of the legal
profession. Prior to this, the Association was called the Law Society of Zambia. As in most other jurisdiction,

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LAZ regulates the legal profession. Members of the association are Individual advocates practicing in
Zambia as full members; and laws students enrolled in various Universities as associate members.

Amongst others, LAZ seeks to further the development of law as an instrument of social order and justice
and as an essential element in the growth of society, to provide a means by which lawyers, whatever their
particular field of activity, can participate together fully and effectively in the development of society and its
institutions and To encourage lawyers as individuals to join actively in the life of, and identify themselves
with people and to utilize their skills and training in their service.

LAZ is a body corporate established by the Law Association of Zambia Act. Being a body corporate, the
Association can sue and be sued and is competent to enter into any contractual obligation of its choice. The
Association’s main policy-making body is the Annual General Meeting, comprising all registered members
of the Association, which membership presently stands at five hundred. In between the Annual General
Meetings the Association elects an Executive, comprising the Chairperson, Vice-Chairperson, Hon.
Secretary, Hon. Treasurer and thirteen Council Members to run the day-to-day affairs of the Association. The
Association has various committees of duly appointed Advocates responsible for various activities of the
Association; and is the legal umbrella of the National Legal Clinic for Women.

Legal Aid Board

The Legal Aid Act was enacted on 20th November 1967 to provide for legal aid in civil and criminal matters
and causes to persons whose means are inadequate to enable them to engage practitioners to represent them.
The Directorate of Legal Aid Board operated as a department within the Ministry of Legal Affairs and
consequently enjoyed limited autonomy. However, by the Legal Aid (Amendment) Act the Legal Aid
department was transformed into a Legal Aid Board.

By the Legal Aid (Amendment) Act of 2005, the Legal Aid Board was re-constituted as a body corporate,
with perpetual succession and legal capacity to sue and to be sued. Some of the functions include: (a)
Facilitation of the representation of persons granted legal aid; (b) Assigning practitioners to persons granted
legal aid under the Act; and (c) Advise the Minister on policies relating to the provision of legal aid and
implement Government policies relating to the same.

The rigorous formalities surrounding the Legal Aid Board still make it difficult for the ordinary person to
easily approach the Board.

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National Institute for Public Administration

The National Institute for Public Administration (NIPA) is critical in the administration of justice in Zambia.
It has been known by it’s role of training of Public Prosecutors, other law enforcement agents, the military
personnel and lay Magistrates. Today, NIPA has introduced degree programmes both in law and public
administration.

Zambia Institute for Advanced Legal Education

The Zambia Institute for Advanced Legal Education (ZIALE) is the sole Bar School in Zambia. All lawyers
graduating from various Universities both locally and from abroad have to be trained at ZIALE for possible
admission to the Zambian Bar for them to practice law as Advocates of the High Court for Zambia (AHCZ).

Law Reporting Council

Zambia has a law report series known as the Zambia Law Reports (ZLR) governed by the Law Reporting
Council. These Law reports are available online and they are obtainable at the high court. The statutes of
Zambia are available online and are listed by name. Supreme Court, High Court, Industrial Relations Court,
Land Tribunal, Revenue Tribunal rulings are also found online. The ‘Zambian Law Journal’ is found at the
school of Law in the University of Zambia.

The ‘Laws of Zambia- Green Volume’ is a 1996 compilation of 26 Volumes containing all the laws and the
entire respective various Republican Constitutions since independence. Volume 1 Contains the Index of the
Laws of Zambia. The Laws are in read only PDF format. Zambia law Reports can also be obtained at the
University of Pretoria. There is also ‘Zambia Law Reports Consolidated Index’ containing the cumulative
indexes of cases reported, cases referred to, legislation referred to, and subject matter from 1963 to 1978
Published in 1984, Council of Law Reporting, and High Court for Zambia (Lusaka, Zambia).

Activity

Discuss the roles of various institutions that contribute to the legal fraternity

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Topic 5: Ethics in the legal profession
Ethics in the legal fraternity are a paramount requirement in everything a lawyer does.

Lawyer’s Dress Code

A lawyers’ dress code is governed by the Practice Directive of 1977 as amended in 2005. Under here, both
male and female lawyers must wear when appearing in court. The colors for the suit are restricted to navy
blue; black; and charcoal grey. For soft linen, female counsel must wear a blouse while male counsel must
wear long sleeved shirts. The colours in both instances must be elegant and not flamboyant. That is to say,
white shirt or white blouse and black suit in criminal matters. A red necktie is diplomatically the best for
male counsel. In civil matters, both male and female counsel may opt for sky blue or white soft linen (shirt or
blouse respectively).

Female counsel may wear slacks provided they are not tight to their skin. If they opt for skirts, the same
should be long enough to go at least down their knees. Shoes for both counsel must be black in colour and
closed; not too high-heeled and not flamboyantly fancy. Hair style for both male and female counsel must be
smart and simple- not fancy or exaggerated.

Etiquette to the Bench

The language of a lawyer must demonstrate courtesy and etiquette to the Bench. The following is the right
appellation for various levels of Adjudicators according to their ranks:
i. Chief Justice; Deputy Chief Justice and Supreme Court Adjudicators are referred to as Honourable Justices
of the Supreme Court. Your address the as: “My lord(s); Mi lord(s); or your lordship(s)” if male. If female,
you address them as: “My lady(ies); Mi Lady (ies); or your ladyship(s).”

High Court Adjudicators and Adjudicators of the Commercial Registry are referred to as Honourable Judges
of the High Court. You address them as: “YourHonour” whether male or female.

Adjudicators of the Industrial Relations Court are referred to as Honourable Members of the Industrial Court.
You also address them as: “YourHonour” whether male or female.

Subordinate Courts Adjudicators are referred to as Honourable Magistrates of the Subordinate Court. Your
address them as: “Your worship” whether male or female.

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Adjudicators of the Small Claims Court are referred to as Commissioners of the Court. You address them as:
“Sir” if male or “Madam” if female.

Local Courts Adjudicators are referred to as Honourable Magistrates of the Local Courts. Your address them
as: “Your worship” whether male or female.

Adjudicators of various Tribunals are referred to as Commissioners of the Tribunal. You address them
according to their rank or designation of title. For example, if a Supreme Court Justice presides on a tribunal
you address them as “my lord.”

Activity

Explain the importance of Etiquette in the legal fraternity

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 REFERENCES

Books

Bird, R. (1983), Concise Law Dictionary, 7th Ed. London, Sweet & Maxwell

Bonner, William H. and Lillian H. Chaney. Communicating Effectively in an Information Age.

Second Edition, Dame Publishing, 2003.
C E Odgers, “The Construction of Deeds and Statutes, fourth edition, Sweet & Maxwell, London
Church, L., Introduction to Zambian Law, Cyclostyled
Legal English (2004) by Rupert Haigh and published by Routledge.
Munalula,M.M (2004) Legal Process, Lusaka,UNZA Press,
Williams, G. (1982) Learning the Law, 11th Ed., London, Steven & Sons

Statutes

Adoption Act Chapter 54 of the Laws of Zambia

Anti- Gender Based Violence Act, No. 1 of 2011
British Affiliation Proceedings Act of 1957
Juveniles Act Chapter 53 of the Laws of Zambia
Legal Aid (Amendment) Act of 2005
Marriage Act Chapter 50 of the Laws of Zambia
Practice Directive of 1977 as amended in 2005
The British Act extension Act, Chapter 10 of the Laws of Zambia
The Constitution of Zambia, Chapter 1 of the Laws of Zambia
The Criminal Procedure Code, Chapter 88 of the Laws of Zambia
The Electoral Act No. 12 of 2006
The English law (extent of application) (amendment) Act No. 14 of 2002
The English Law (Extent of Application) Act Chapter 11 of the Laws of Zambia
The Finance (Control and Management) Act, Chapter 347 0f the Laws of Zambia.
The High Court of Zambia Act, Chapter 27 of the Laws of Zambia
The Industrial Relations Court Act, Chapter 269 of the Laws of Zambia
The Interpretation and General Provisions Act, Chapter 2 of the laws of Zambia
The Judicature Administration Act, Chapter 24 of the Laws of Zambia.
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 The Local Court Act, Chapter 29 of the Laws of Zambia
T he P enal Co d e Chapt er 87 o f t he Laws o f Zamb ia
The Preservation of Public Security Regulations, Chapter 106 of the Laws of Zambia
The Small Claims Courts Act, Chapter 47 of the Laws of Zambia.
The Subordinate Court Act, Chapter 28 of the Laws of Zambia
The Supreme Court of Zambia Act, Chapter 25 of the Laws of Zambia

British Statutes

Refreshment Houses Act of 1860

The Road Traffic Act of 1988
The Restriction of Offensive Weapons Act of 1959

Cases

R v Corby Juvenile
Sweet V Parsley
NtombizineMudenda v The Attorney-General (1979) Z.R. 245 (H.C.),
Foster v DiphwysCasson (1887) 18 QBD 428
Heydon's Case (1584) 3 Co Rep 7,
Muir vs. Keay (1875),
R vs. Immigration Appeals Adjudicator Exparte Crew (1982)
R v Hallan (1957),
Smith v Hughes (1960) 2 All ER 859
DPP v Bull [1994] 4 All ER 411
Corkery v Carpenter [1951] 1 KB 102
Attorney General and the Movement for Multi-Party Democracy V. Lewanika and Four Others, SCJ
Judgement No. 2 of 1994
Re Sigsworth (1935) Ch 89
Administration of Intestate Act 1925
Becke v Smith (1836) 2 M&W 195
Grey v Pearson (1857) 6 HL Cas 61, 106
Friday J.M. Ngwira v Zambia National Insurance Brokers Limited (1994) S.J. 57 (S.C.)
Mutale v Attorney-General (1976) Z.R. 139 (H.C.),
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 Kearney a d Co. Ltd v Taw International
Martha Mwiya V Alex Mwiya(1977) Z.R. 113 (H.C.).
R v Chinjamba5 N.R.L.R. 384
Munalo V Vengesai(1974) Z.R 91
Sibande v The People (1975) Z.R. 101 (S.C.)
Fisher v Bell (1961),
Sussex Peerage Case (1844) 11 Cl & Fin 85:
R v Judge of the City of London Court [1892] 1 QB 273
Whiteley v Chappell (1868) LR 4QB 147
Cutter v Eagle Star Insurance [1998] 4 All ER 417
Donnelly-v-Edelsten (1994) 13 ACSR 196
Salomon v Salomon & Co [1897] AC 22
The People v Shamwana and Others (1982) ZR
Simpson v Wells (1872)
Mercer v Derme 1905
Willis v Baddeley [1892] 2 QB 324
Jones v Secretary of State for Social Services [1972] AC 944
Young v Bristol Aeroplane Co Ltd [1944] 2 All ER 293
Chibozu and Another v The People (1981) Z.R. 2.
Day v Savadge (1614),
Abel Banda Vs The People (1986) ZR 105
Morelle v Wakeling[1955] 2 QB 379
Airedale NHS Trust v Bland [1993] 1 All ER 821
Wolstanton V Newcastle – Under – Lyme Co.1940
Pepper (Inspector of Taxes) v Hart [1993] 1 All ER 42
Davis JokieKasote V The People (1977) Z.R. 75 (S.C.),
Secretary of State for Trade and Industry v Desai (1991) The Times 5 December
Re S (Adult: refusal of medical treatment) [1992] 4 All ER 671
Gillick v West Norfolk and Wisbech Area Health Authority (1985)
Chikuta v Chipata Rural Council (1974) Z.R. 241
William Kasonso v Ndola City Council (1997) S.J. 58 (S.C.).
KanikiBuleti v Lot Jairus
R v Mantengula. LRNR 148, 151 (1951)
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 Gwao bin kilimo v. kisundi bin Ifuti (1938) 4 TLR 63
Zambia Sugar Plc v. Fellow Nanzaluka, Appeal No. 82of 2001

International instruments
Universal Declaration of Human Rights (Universal Declaration) (1948)
The International Covenant on Civil and Political Rights (1966)
The International Covenant on Economic, Social and Cultural Rights (1976)

Dictionaries

The Osbome's Concise Law Dictionary, 9th edition

Pocket Oxford Dictionary 8th edition
R. Bird (1983), Concise Law Dictionary, 7th edition. London: Sweet & Maxwell.

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