CHAPTER 28 - SUBORDINATE COURTS ACT: SUBSIDIARY LEGISLATION
INDEX TO SUBSIDIARY LEGISLATION
Limits of Jurisdiction of Subordinate Courts Presided over by Senior Resident Magistrates
Limits of Jurisdiction of Subordinate Courts Presided over by Resident Magistrates
Subordinate Courts (Civil Jurisdiction) Rules
LIMITS OF JURISDICTION OF SUBORDINATE COURTS PRESIDED OVER BY SENIOR RESIDENT MAGISTRATES
[Section 4]
[Directions by the Chief Justice]
GN 20 of 1959,
GN 179 of 1959,
GN 8 of 1961,
GN 116 of 1962,
GN 357 of 1964,
GN 477 of 1964,
GN 478 of 1964,
GN 497 of 1964.
(1) The subordinate court presided over by the Senior Resident Magistrate, Lusaka.
Within all districts within the Central Province, the Eastern Province, the Southern Province and the Western Province.
(2) The subordinate court presided over by the Senior Resident Magistrate, Ndola.
Within all districts within the Copperbelt Province, the Northern Province and the Luapula Province.
(3) The subordinate court presided over by the Senior Resident Magistrate, Kitwe.
Within all districts within the Copperbelt Province, the North-Western Province, the Northern Province and the Luapula Province.
(4) The subordinate court presided over by the Senior Resident Magistrate, Livingstone.
Within all Districts within the Southern Province and the Western Province.
(5) The subordinate court presided over by the Senior Resident Magistrate, Mansa.
Within all Districts within the Luapula Province, the Northern Province and the Copperbelt Province.
(6) The subordinate court presided over by the Senior Resident Magistrate, Mongu.
Within all districts within the Western Province, the Southern Province and the North-Western Province.
(7) The subordinate court presided over by the Senior Resident Magistrate, Kasama.
Within all Districts within the Luapula Province and the Northern Province.
LIMITS OF JURISDICTION OF SUBORDINATE COURTS PRESIDED OVER BY RESIDENT MAGISTRATES
[Section 4]
[Directions by the Chief Justice]
GN 184 of 1957,
GN 34 of 1958,
GN 131 of 1958,
GN 307 of 1958,
GN 73 of 1959,
GN 168 of 1960,
GN 368 of 1961,
GN 497 of 1964.
SI 4 of 2000.
(1) The subordinate court presided over by the Resident Magistrate, Livingstone.
Within all districts within the Southern Province, the Central Province and the Western Province.
(2) The subordinate court presided over by the Resident Magistrate, Lusaka.
Within all districts within the Central Province, the Southern Province and the Eastern Province.
(3) The subordinate court presided over by the Resident Magistrate, Kabwe.
Within all districts within the Central Province, the Eastern Province, the Copperbelt Province, the Northern Province and the Luapula Province.
(4) The subordinate court presided over by the Resident Magistrate, Ndola.
Within all districts within the Copperbelt Province, the Northern Province, the Luapula Province, the North-Western Province and the Central Province.
(5) The subordinate court presided over by the Resident Magistrate, Luanshya.
Within all districts within the Copperbelt Province, the Northern Province, the Luapula Province, the North-Western Province and the Central Province.
(6) The subordinate court presided over by the Resident Magistrate, Kitwe.
Within all districts within the Copperbelt Province, the Northern Province, the Luapula Province, the North-Western Province and the Central Province.
(7) The subordinate court presided over by the Resident Magistrate, Mufulira.
Within all districts within the Copperbelt Province, the Northern Province, the Luapula Province, the North-Western Province and the Central Province.
(8) The subordinate court presided over by the Resident Magistrate, Chingola.
Within all districts within the Copperbelt Province, the North-Western Province, the Northern Province and the Luapula Province.
(9) The Subordinate Court Presided over by the Resident Magistrate, Chipata.
Within all Districts within the Eastern Province, the Central Province and Northern Province.
[Rule 9 subs by rule 2 of SI 4 of 2000.]
(10) The subordinate court presided over by the Resident Magistrate, Choma.
Within all Districts within the Southern Province and the Western Province.
(11) The subordinate court presided over by the Resident Magistrate, Mansa.
Within all districts within the Luapula Province, the Northern Province and the Copperbelt Province.
[Section 9]
GN 322 of 1961.
[Direction by the Chief Justice]
Subordinate courts shall use seals which are round in shape and which produce on paper a raised impression of the words "subordinate court" followed by the name of a place within the jurisdiction of each respective court.
[Section 10]
[Notices by the Chief Justice]
GN 27 of 1934,
GN 84 of 1958,
GN 371 of 1958,
GN 21 of 1959,
GN 82 of 1961,
GN 161 of 1961,
GN 3 of 1962,
GN 41 of 1962,
GN 86 of 1962,
GN 382 of 1964,
SI 421 of 1965,
SI 381 of 1967,
SI 303 of 1968.
The buildings hitherto used as subordinate courts.
Court House, Chililabombwe.
The building situate on Plot No. 25, Chililabombwe.
Court House, Chingola.
The building known as the subordinate court situate on Plot No. 377, Kitwe Road, Chingola.
Court House, Chinsali.
The building known as the subordinate court situate at the rear of the buildings erected on Plot No. P.2, Chinsali.
Court House, Choma.
The subordinate court situate on the north-east corner of Plot No. 14, Choma.
Court House, Isoka.
The building known as the subordinate court situate within the precincts of the Boma, Isoka.
Court House, Kabwe.
Plot No. 1229, Broadway, Kabwe.
Court House, Kalulushi.
The building known as the subordinate court adjoining the precincts of the Boma, Kalulushi.
Court House, Kasama.
Within the precincts of the new Boma, Kasama.
Court House, Kawambwa.
The building known as the subordinate court situate on Plot No. U.23 adjacent to the Boma, Kawambwa.
Court Houses, Kitwe.
Court no. 1 and court no. 2 situate at the subordinate court building, Drury Lane, Kitwe.
Court no. 3 and court no. 4 situate in the precincts of the old Boma building, Canberra Avenue, Kitwe.
Court Houses, Lusaka.
The subordinate courts situate in Jubilee Drive, Lusaka, and at the Boma, Lusaka.
Court House, Mansa.
Adjacent to the new Boma, Mansa.
Court House, Mbala.
The building known as the subordinate court situate at the rear of the buildings erected on plot No. 215, Mbala.
Court House, Mongu.
Situated on an unnumbered plot in Mongu Township between the Post Office and the Old Parade Ground.
Court House, Sesheke.
The building known as the subordinate court situate within the precincts of the Boma, Sesheke.
Court House, Solwezi.
The building known as the subordinate court adjoining the Boma, Solwezi.
Court House, Zambezi.
The building known as the subordinate court situate within the precincts of the Boma, Plot No. 3411, Zambezi.
[Section 25]
[Direction by the Chief Justice]
GN 26 of 1934,
GN 497 of 1964.
Ordinarily at the headquarters of the provinces and districts of Zambia.
SUBORDINATE COURTS (CIVIL JURISDICTION) RULES
[Section 57]
[Re-denominate the currency as stipulated under S 4 of Re-denomination Act, 8 of 2012, read with Bank of Zambia Act, 43 of 1996.]
Arrangement of Rules
Rule
GN 212 of 1940,
GN 141 of 1943,
GN 244 of 1944,
GN 166 of 1950,
GN 175 of 1950,
GN 313 of 1952,
GN 314 of 1952,
GN 253 of 1954,
GN 23 of 1958,
GN 81 of 1958,
GN 94 of 1958,
GN 135 of 1959,
GN 306 of 1959,
GN 137 of 1960,
GN 323 of 1960,
GN 247 of 1961,
GN 341 of 1962,
GN 180 of 1964,
GN 208 of 1964,
GN 445 of 1964,
GN 497 of 1964,
SI 22 of 1964,
SI 63 of 1964,
SI 155 of 1968,
SI 342 of 1968,
SI 91 of 1980,
SI 104 of 1986,
SI 175 of 1990,
SI 48 of 1995,
SI 87 of 1997,
SI 22 of 2001,
SI 29 of 2012,
SI 73 of 2018,
Act 57 of 1964.
[Rules by the Chief Justice]
These rules may be cited as the Subordinate Courts (Civil Jurisdiction) Rules.
In these rules, unless the context otherwise requires-
"appellate court" means the High Court;
"court" means a subordinate court;
"legal representative" means any person who is authorised by any written law to represent or appear on behalf of any party to a legal proceeding;
"mediator" means the person nominated as mediator under Order XLIII;
[Ins by r 2 of SI 73 of 2018.]
"prescribed" means prescribed by these Rules;
"proceeding" means any civil suit, action, cause or matter filed and pending in the court except as regards rights and obligations which are not at the partie's disposal;
[Ins by r 2 of SI 73 of 2018.]
"the Registrar" means the Registrar of the High Court and includes any District Registrar or Assistant Registrar of the High Court.
[Am by GN 445 of 1964.]
These rules are divided into the following orders-
Order I | General forms of process, fees, etc. |
Order II | Computation of time |
Order III | Miscellaneous provisions |
Order IV | Employment of Barristers and Solicitors |
Order V | Evidence |
Order VI | Form and commencement of suit |
Order VII | Service of process |
Order VIII | Parties |
Order IX | Particulars of claim |
Order X | Guardian for purposes of suit |
Order XI | Alteration of parties |
Order XII | Third party procedure |
Order XIII | Discontinuance of suits |
Order XIV | Place of trial and institution of suits |
Order XV | Amendment |
Order XVI | Admissions |
Order XVII | Settlement of issues |
Order XVIII | Pleadings |
Order XIX | Inquiries and accounts |
Order XX | Appearance of parties |
Order XXI | Arrest of absconding defendant |
Order XXII | Interim attachment of property |
Order XXIII | Interim injunctions, etc |
Order XXIV | Equitable relief, counter-claim, set-off |
Order XXV | Tender and payment into court |
Order XXVI | Interrogatories. Discovery and production of documents |
Order XXVII | Motions |
Order XXVIII | Listing of causes for hearing |
Order XXIX | Postponement of hearing |
Order XXX | Sittings of court |
Order XXXI | Non-attendance of parties at hearing |
Order XXXII | Proceedings on the return day |
Order XXXIII | Default procedure |
Order XXXIV | Proceedings at the hearing |
Order XXXV | Judgment |
Order XXXVI | Recording of judgments |
Order XXXVII | Affiliation and Maintenance of Children Act |
Order XXXVIII | Review |
Order XXXIX | Costs |
Order XL | Enforcement of orders |
Order XLI | Execution |
Order XLII | Composition orders |
Order XLIII | Reference to arbitration |
Order XLIV | Appeals |
Order XLV | Recovery of costs by legal practitioners |
ORDER I
GENERAL FORMS OF PROCESS, FEES, ETC.
1. Interpretation
In this order, "proper officer of the court" means any Magistrate exercising jurisdiction in that court, any clerk of the court acting under the provisions of section 34 of the Act or any officer appointed in writing as such by any Magistrate exercising jurisdiction in the particular court.
2. Sealing writs
The sealing of any writ or process shall not be necessary in addition to the signature of a Magistrate or clerk of the court, as the case may be, unless sealing is particularly prescribed by some written law or rule of court.
3. Forms
The forms in the First Schedule, or forms to the like effect, may be used in all matters, causes and proceedings to which they are applicable, with such variations as circumstances may require.
4. Provision for additional forms
In proceedings for which forms are not provided in the First Schedule or prescribed by any Act or rules or orders of court, the Registrar may, subject to the approval of the Chief Justice, from time to time, frame the forms required, using as guides those which may have been provided.
5. Fees
The fees prescribed in the Second Schedule shall be paid by the party at whose instance they are incurred, and may afterwards be recovered as costs of cause if the court shall so order. The court may, on account of the poverty of any party, although such party may not have been formally admitted to sue or defend as a pauper, or for other sufficient reasons, dispense, if it sees fit, with the payment of any fees. Where the court so dispenses with the payment of fees, a note to the effect shall be made and signed by the Magistrate and filed by the clerk of the court.
6. Mode of payment of fees
All court fees or any other fees payable under these rules shall be paid by stamps, cash, postal order or bank certified cheque.
[Am by SI 48 of 1995; 87 of 1997.]
7. Document to be stamped
The document to be stamped shall be the document indicated in the third column of the Second Schedule. Such document shall be stamped before presentation at the office of the court and, unless so stamped, such document shall not, except as aforesaid, be accepted.
8. Cancellation of stamps
Upon receipt of any such document, the proper officer of the court shall forthwith cancel such revenue stamps by means of impressing with indelible ink partly upon each and every such stamp and partly upon the document to which they are affixed, the stamp of the court with the true date of such impression and by writing his initials across or within the impression in such a manner that the stamps are clearly defaced.
9. No receipt to be issued
No receipt shall be issued by the court or any officer thereof in respect of revenue stamps required to be affixed under these rules.
10. Duty of officers
The proper officer of the court, whose duty it is to receive any document requiring to be stamped hereunder, shall ensure that each and every such document is sufficiently and properly stamped before accepting the same.
11. Refund of value in certain cases
(1) When any document not requiring to be stamped is inadvertently stamped or when stamps to a value in excess of those laid down in the Second Schedule are inadvertently affixed or such document is not presented to or is not accepted for filing by the court, the document may, at the instance of the party by whom it was so stamped, be cancelled and substituted by one bearing the correct value of stamps.
(2) Refunds to the value of the stamps affixed to any document cancelled under the provisions of sub-rule (1) may be made by the proper officer of the court to the party responsible for the stamping thereof:
Provided that-
(i) application is made to the proper officer of the court within thirty days of the date of cancellation of such document; and
(ii) the application is accompanied by the cancelled document which shall be attached by the proper officer of the court to the voucher in support of the refund and shall thenceforth be the property of the Government.
[Am by SI 63 of 1964.]
12. Witnesses"™ and assessors"™ allowances and expenses
Allowances and expenses of witnesses and assessors shall be as set forth in the Third Schedule.
13. Scale of costs
Except as otherwise provided by these rules, costs shall be allowed to legal practitioners and taxed in accordance with the scale of costs set forth in the Fourth Schedule.
[Am by GN 166 of 1950; 208 of 1964.]
14. Electronic documents Act No. 21 of 2009
(1) Subject to section 5 of the Electronic Communications and Transactions Act, 2009, where under these Rules any process, notice, record or other document is required to be in writing, such process or document may be in electronic or hard copy format, as applicable.
(2) Where any process, notice, record or other document is required to be served under these Rules, it may be served in electronic or hard copy format, as applicable.
[Rule 14 ins by rule 2 of SI 29 of 2012.]
ORDER II
COMPUTATION OF TIME
1. How to be made
Where, by any section of the Act, or any order or rule of court, or any special order, or the course of the court, any limited time from or after any date or event is appointed or allowed for the doing of any act or the taking of any proceeding, and such time is not limited by hours, the following rules shall apply-
Commencement of a limited time
(a) the limited time shall not include the day of the date or of the happening of the event, but shall commence at the beginning of the day next following that day;
When act to be done
(b) the act or proceeding must be done or taken at latest on the last day of the limited time;
Saturdays, Sundays and holidays
(c) when the limited time is less than six days, the following days shall not be reckoned as part of the time, namely, Saturdays, Sundays and any public holidays;
Time expiring on Saturday, Sunday or holiday
(d) when the time expires on one of those days, the act or proceedings shall be considered as done or taken in due time, if it is done or taken on the next day afterwards, not being one of those days.
[Am by SI 22 of 1964.]
2. Enlargement or abridgement of time
Parties may, by consent, enlarge or abridge any of the times fixed for taking any step, or filing any document, or giving any notice, in any suit. Where such consent cannot be obtained, either party may apply to the court for an order to effect the object sought to have been obtained with the consent of the other party, and such order may be made although the application for the order is not made until after the expiration of the time allowed or appointed.
ORDER III
MISCELLANEOUS PROVISIONS
1. Public or private sittings of court
The sittings of the court for the hearing of causes and matters shall ordinarily be public; but the court may, for reasons to be recorded in writing, hear any particular cause or matter in the presence only of the parties, with their legal advisers, if any, and the officers of the court.
2. What orders to be made
Subject to any particular rules, the court may, in all causes and matters, make any interlocutory order which it considers necessary for doing justice, whether such order has been expressly asked by the person entitled to the benefit of the order or not.
3. Consolidation of causes
Causes or matters pending in the court may, by order of the court, be consolidated, and the court shall give any directions that may be necessary as to the conduct of the consolidated actions.
4. Interpreter
If, in any cause or matter, any party, witness or other person is unable to speak or understand the English language, the court may direct a fit and proper person to attend and interpret the proceedings so far as may be necessary. Before so interpreting, such person shall swear an oath in the following form-
"I swear that I will well and truly interpret and explanation make of all such matters and things as shall be required of me to the best of my skill and understanding. So help me God."
5. Receipts
Save where any fee is required to be taken hereunder by means of adhesive revenue stamps-
(a) when any fee is payable in respect of a document, the officer of the court authorised to receive such fee shall make and initial upon the document an endorsement showing the fee paid and the number of the receipt recording the payment;
(b) the officer whose duty it is to receive any fee for any matter or thing done or performed shall, before doing or performing such matter or thing, ensure that the proper fee is paid or a sufficient sum of money provided.
ORDER IV
EMPLOYMENT OF BARRISTERS AND SOLICITORS
1. Change of practitioners during the hearing of a cause or matter
A party suing or defending by a barrister or solicitor in any cause or matter shall be at liberty to change his solicitor in such cause or matter, without an order for that purpose, upon notice of such change being filed in the office of the clerk of the court in which such cause or matter may be proceeding. But, until such notice is filed and a copy served, the former solicitor shall be considered the solicitor of the party until final judgment, unless allowed by the court, for any special reason, to cease from acting therein; but such solicitor shall not be bound, except under express agreement or unless re-engaged, to take any proceedings in relation to any appeal from such judgment.
2. Liability to pay costs
(1) When it shall appear to the court that any civil cause or matter has been commenced or carried on maliciously or without probable grounds, and the party by whom or on whose behalf such cause or matter has been so commenced or carried on has been represented therein by a barrister or solicitor who had knowledge of such malice or lack of probable grounds, or if it shall appear that any barrister or solicitor has, by any sort of deceit, induced his client to enter into or continue any litigation, every such barrister or solicitor shall, on failure of his client to pay any costs which he may be ordered to pay, be liable, if the court so orders, to pay the amount thereof to the party to whom costs are given. Such failure shall be deemed to have taken place if the client shall have refused or neglected to make payment after a demand has been made on him, although no process of execution may have been issued against him.
(2) This rule shall not be construed to restrict the liability of any barrister or solicitor in respect of the misconduct referred to in sub-rule (1) or any other misconduct for which he would otherwise be punishable or in respect of which he would otherwise be subject to any liability.
ORDER V
EVIDENCE
I - EXCLUSION OF WITNESSES
1. Ordering witnesses out of court
On the application of either party, or on its own motion, the court may order witnesses on both sides to be kept out of court; but this rule does not extend to the parties themselves or to their professional representatives, although intended to be called as witnesses.
2. Preventing communication with witnesses
The court may, during any trial, take such means as it considers necessary and proper for preventing communication with witnesses who are within the court house or its precincts awaiting examination.
II - DOCUMENTARY EVIDENCE
3. Entries in books of account
Entries in books of account, kept in the course of business with such a reasonable degree of regularity as shall be satisfactory to the court, shall be admissible in evidence whenever they refer to a matter into which the court has to inquire, but shall not alone be sufficient evidence to charge any person with liability.
4. Government Gazettes
Any Government Gazette of any British Dominion, colony or protectorate or any territory in respect of which Her Britannic Majesty has accepted a mandate may be proved by the bare production thereof before the court.
[Am by SI 63 of 1964.]
5. Proof of proclamations, etc.
All Proclamations, Acts of State, whether legislative or executive, nominations, appointments, and other official communications of the Government, appearing in any Gazette referred to in the last preceding rule, may be proved by the production of such Gazette, and shall be prima facie proof of any fact of a public nature which they were intended to notify.
6. Books of science, maps, charts, etc.
On matters of public history, literature, science or art, the court may refer, if it shall think fit, for the purposes of evidence, to such published books, maps or charts as the court shall consider to be of authority on the subject to which they relate.
7. Foreign law
Books printed or published under the authority of the government of a foreign country and purporting to contain the statutes, code or other written law of such country, and also printed and published books of reports of the decisions of the COURTS of such country, and books proved to be commonly admitted in such courts as evidence of the law of such country, shall be admissible as evidence of the law of such country.
8. Public maps
All maps made under the authority of any government or of any public municipal body, and not made for the purpose of any litigated question, shall prima facie be deemed to be correct, and shall be admitted in evidence without further proof.
9. Examined or certified copies of documents admissible in evidence
Whenever any book or other document is of such a public nature as to be admissible in evidence on its mere production from the proper custody, and no Act or statute exists which renders its contents provable by means of a copy, any copy thereof or extract therefrom shall be admissible in evidence if it purports to be signed and certified as a true copy or extract by the officer to whose custody the original is entrusted.
10. Production of documents without giving evidence
Any person, whether a party or not in a cause or matter, may be summoned to produce a document without being summoned to give evidence; and, if he cause such document to be produced in court, the court may dispense with his personal attendance.
III - AFFIDAVITS
11. Affidavits to be filed
Before an affidavit is used in the court for any purpose, the original shall be filed in the court, and the original or an office copy shall alone be recognised for any purpose in the court.
12. Not to be sworn before certain persons
An affidavit shall not be admitted which is proved to have been sworn before a person on whose behalf the same is offered, or before his solicitor, or before a partner or clerk of his solicitor.
13. Defective in form
The court may permit an affidavit to be used, notwithstanding it is defective in form according to these rules, if the court is satisfied that it has been sworn before a person duly authorised.
14. Amendment and reswearing
A defective or erroneous affidavit may be amended and re-sworn, by leave of the court, on such terms as to time, costs or otherwise as seem reasonable.
15. No extraneous matter
An affidavit shall not contain extraneous matter by way of objection or prayer or legal argument or conclusion.
16. Contents of affidavits
Every affidavit used in the court shall contain only a statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true.
17. Grounds of belief to be stated
When a witness deposes to his belief in any matter of fact, and his belief is derived from any source other than his own personal knowledge, he shall set forth explicitly the facts and circumstances forming the ground of his belief.
18. Informant to be named
When the belief of a witness is derived from information received from another person, the name of his informant shall be stated, and reasonable particulars shall be given respecting the informant, and the time, place and circumstances of the information.
19. Copies of exhibits
Where any document referred to in an affidavit and exhibited thereto is a hand-written document, other than a statement of account, book of account or extract therefrom, there shall also be exhibited therewith a typewritten or printed copy thereof certified in such affidavit to be a true and correct copy of the original.
20. Rules in taking affidavits
The following rules shall be observed by Commissioners and others before whom affidavits are taken-
(a) To be properly entitled
Every affidavit taken in a cause or matter shall be headed in the court and in the cause or matter;
(b) Description of witness
It shall state the full name, trade or profession, residence and nationality of the witness;
(c) In first person
It shall be in the first person and divided into convenient paragraphs, numbered consecutively;
(d) Erasures, etc., to be attested
Any erasure, interlineation or alteration made before the affidavit is sworn shall be attested by the Commissioner, who shall affix his signature or initials in the margin immediately opposite to the interlineation, alteration or erasure;
(e) If improperly written
Where an affidavit proposed to be sworn is illegible or difficult to read, or is, in the judgment of the Commissioner, so written as to facilitate fraudulent alteration, he may refuse to swear the witness and require the affidavit to be re-written in an unobjectionable manner;
(f) Witness to sign
The affidavit shall be signed by the witness (or, if he cannot write, marked by him with his mark) in the presence of the Commissioner;
(g) Form of jurat
The jurat shall be written, without interlineation, alteration or erasure (unless the same be initialed by the Commissioner), immediately at the foot of the affidavit, and towards the left side of the paper, and shall be signed by the Commissioner.
Date and place- It shall state the date of the swearing and the place where it is sworn.
In presence of Commissioner- It shall state that the affidavit was sworn before the Commissioner or other officer taking the same.
Illiterate or blind witness- Where the witness is illiterate or blind, it shall state the fact, and that the affidavit was read over (or translated into his own language in the case of a witness not having sufficient knowledge of English), and that the witness appeared to understand it.
Marksmen:
Where the witness makes a mark instead of signing, the jurat shall state that fact, and that the mark was made in the presence of the Commissioner.
Joint affidavit:
Where two or more persons join in making an affidavit, their several names shall be written in the jurat, and it shall appear by the jurat that each of them has been sworn to the truth of the several matters stated by him in the affidavit;
(h) If affidavit altered, to be re-sworn
The Commissioner shall not allow an affidavit, when sworn, to be altered in any manner without being re-sworn;
(i) New jurat
If the jurat has been added and signed, the Commissioner shall add a new jurat on the affidavit being re-sworn; and, in the new jurat, he shall mention the alteration;
(j) New affidavit
The Commissioner may refuse to allow the affidavit to be re-sworn, and may require a fresh affidavit;
(k) Declarations without oath
The Commissioner may take, without oath, the declaration of any person affirming that the taking of any oath whatsoever is, according to his religious belief, unlawful, or who, by reason of immature age or want of religious belief, ought not, in the opinion of the Commissioner, to be admitted to make a sworn statement. The Commissioner shall record in the attestation the reason of such declaration being taken without oath;
(l) Certificate on exhibit
Every certificate on an exhibit referred to in an affidavit signed by the Commissioner before whom the affidavit is sworn shall be marked with the short title of the cause or matter.
[Am by GN 135 of 1959.]
IV - OBJECTIONS TO EVIDENCE
21. When to be made
In every cause or matter, and at every stage thereof, any objection to the reception of evidence by a party affected thereby shall be made at the time the evidence is offered:
Provided that an appellate court may, in its discretion, entertain any objection to evidence received in the court below, though not objected to at the time it was offered.
22. Where question objected to
Where a question proposed to be put to a witness is objected to, the court, unless the objection appears frivolous, shall, if required by either party, take note of the question and objection, and mention on the notes whether the question was allowed to be put or not and, if put, the answer to it.
23. Marking of rejected documents
Where a document is produced and tendered in evidence and rejected by the court, the document shall be marked as having been so tendered and rejected.
V - TAKING OF EVIDENCE
24. Evidence of witnesses, how taken
In the absence of any agreement between the parties, and subject to these rules, the witnesses at the trial of any suit shall be examined viva voce and in open court; but the court may, at any time, receive evidence of a witness by audio-visual technology from a source within or outside Zambia, or, order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing or trial, on such conditions as the court may think reasonable, or that any witness whose attendance in the court ought, for some sufficient cause, to be dispensed with be examined by interrogatories or otherwise before an officer of the court or other person:
Provided that, where it appears to the court that the other party bona fide desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorising the evidence of such witness to be given by affidavit.
[Rule 24 am by rule 3 of SI 29 of 2012.]
25. Admission of affidavits
In any suit, the court may, in its discretion, if the interests of justice appear so to require (for reasons to be recorded in the minutes of the proceedings), admit an affidavit in evidence, although it is shown that the party against whom the affidavit is offered in evidence has had no opportunity of cross-examining the person making the affidavit.
26. Evidence on commission
The court may, in any suit where it shall appear necessary for the purpose of justice, make any order for the examination, before any officer of the court or other person, and at any place, of any witness or person, and may order any deposition so taken to be filed in the court, and may empower any party to any such suit to give such deposition in evidence therein on such terms, if any, as the court may direct.
27. How to be taken
Evidence on commission, when not directed to be taken upon interrogatories previously settled, shall be taken, as nearly as may be, as evidence at the hearing of a suit, and then the notes of the evidence shall be read over to the witness and be signed by him. If the witness refuses to sign the notes of evidence, the officer of the court or other person shall add a note of his refusal, and the statement may be used as if he had signed it.
28. Evidence before suit instituted
Evidence may be taken in like manner, on the application of any person, before suit instituted, where it is shown to the satisfaction of the court on oath that the person applying has good reason to apprehend that a suit will be instituted against him in the court, and that some person within the jurisdiction at the time of the application can give material evidence respecting the subject of the apprehended suit, but that he is about to leave the jurisdiction, or that, from some other cause, the person applying will lose the benefit of his evidence if it be not at once taken; and the evidence so taken may be used at the hearing, subject to just exceptions:
Provided always that the court may impose any terms or conditions with reference to the examination of such witness, and the admission of his evidence, as to the court may seem reasonable.
29. Facilities for proving deed, etc.
Any party desiring to give in evidence any deed or other instrument which shows upon the face of it that it has been duly executed may deliver to the opposite party, not less than four clear days before the return date, a notice in writing specifying the date and nature of and the parties to such deed or instrument, and requiring the opposite party to admit that the same was executed as it purports to have been, saving all just exceptions as to its admissibility, validity and contents; and if, at or before the hearing of the suit, the party so notified shall neglect or refuse to give such admission, the court may adjourn the hearing in order to enable the party tendering such deed or instrument to obtain proof of the due execution thereof, and, upon production of such proof, the court may order the costs of such proof to be paid by the party so neglecting or refusing, whether he be the successful party or not.
ORDER VI
FORM AND COMMENCEMENT OF SUIT
1. Commencement by writ of summons
Except where otherwise by law provided, every suit shall be commenced by writ of summons issued by the clerk of the court.
2. Preparation of writ of summons
(1) The writ shall be prepared by the plaintiff or his legal represnentative save that where the plaintiff is-
(a) illiterate or for some other good reason unable to prepare the writ himself; and
(b) unable from lack of means or other good cause to instruct a legal representative;
the clerk of the court or the Magistrate or any District Secretary or Assistant District Secretary may prepare the writ on payment by the plaintiff of the prescribed fee.
(2) The writ shall be signed by the plaintiff or by his legal representative as such:
Provided that, if the plaintiff be unable to sign his name, it shall be sufficient if he shall affix his mark to the writ in the presence of the Magistrate or the clerk of the court who shall thereupon certify the said mark as being that of the plaintiff made in his presence.
[Am by GN 445 of 1964.]
3. Form and context of writ of summons
(1) Every writ of summons shall be in such one of the prescribed forms in the First Schedule or forms to the like effect as may be applicable to the case with such variations as circumstances may require.
(2) Every writ shall contain the full name, postal and electronic mail address, if any and place of abode of the plaintiff and the name and address of his legal representative, if any, the full name, postal and electronic mail address, if any and place of abode of the defendant so far as these be known to the plaintiff, and the nature of the plaintiff's claim, particulars of which shall be set out as nearly as may be in accordance with the provisions of order IX; and if either the plaintiff or the defendant be a married woman, that fact shall be stated in the writ.[First Schedule, Form 2 or 3]
[Rule 3 am by GN 155 of 1968, rule 4(a) of SI 29 of 2012.]
4. Affidavit
(1) When the claim is in respect of a debt or liquidated demand, the plaintiff may file a default writ of summons in the prescribed form, or a form to the like effect, and at the time of the filing of such default writ of summons shall file an affidavit verifying such debt or demand and thereupon such affidavit shall, for the purpose of service upon the defendant, be treated in all ways as part of such default writ of summons. [First Schedule, Form 3]
(2) There shall be attached to every default writ of summons a form of Admission Defence and counter-claim in the prescribed form and such form shall for the purposes of service upon the defendant be treated in all ways as part of such default writ of summons. [First Schedule, Form 5]
5. Issue of writ of summons
(1) Every writ shall be issued by the clerk of the court who shall sign the same and endorse thereon the date of issue and cause to be entered on the Register both an electronic and hard copy of the writ.
[Rule 5(1) am by rule 4(b)(i) of SI 29 of 2012.]
(2) Except in the case of a default writ of summons the magistrate, allocated the case shall, before the writ is issued, endorse thereon the place of hearing, the time of hearing and the date of hearing (hereinafter called the "return day").
[Rule 5(2) am by GN 155 of 1968; rule 4(b)(ii) of SI 29 of 2012.]
6. Return day
(1) The return day fixed by the magistrate shall be such as to permit personal or electronic service being effected on the defendant and as to permit further the defendant having a reasonable time within which to comply with the provisions of these Rules in the event of the defendant wishing to defend the suit.
[Rule 6(1) subs by rule 4(c)(i) of SI 29 of 2012.]
(2) First Schedule, Form 9
The clerk of the court shall inform the plaintiff in writing or by electronic means, of the date of the return day: [First Schedule, Form 9]
Provided that it shall be deemed to be sufficient compliance with this requirement if he shall endorse the return day on any copy of the writ retained by the plaintiff and shall initial the same.
[Rule 6(2) am by rule 4(c)(ii) of SI 29 of 2012.]
7. Alteration of return day
(1) Where the court messenger shall have in his custody any writ of summons of which he is required to effect personal service and shall fail to effect service not less than five clear days before the return day, he shall forthwith return the writ to the clerk of the court who shall, subject to any directions by the Magistrate in this behalf, fix another return day and endorse the same on the writ. [O.6, 7]
(2) Where in pursuance of this rule the clerk of the court shall fix another return day, he shall forthwith inform the plaintiff or his legal representative of the same in writing and of the reasons therefor so far as the same be known to him and shall forthwith take such steps as he may consider fit to have the writ served. [First Schedule, Form 10]
(3) If the writ be not served not less than five clear days before the new return day, the court messenger in whose custody it is shall again return it to the clerk of the court who shall fix yet another return day and endorse the same on the writ and this shall be done from time to time, so often as may be necessary, until service be effected not less than five clear days before the last fixed return day:
Provided that on every occasion on which he shall alter the return day, the clerk of the court shall so inform the plaintiff or his legal representative in writing.
[Am by GN 155 of 1968.]
8. Division of causes of action
It shall not be lawful for any plaintiff to divide any cause of action for the purpose of bringing two or more actions, but any plaintiff having a cause of action in excess of the amount for which an action might be brought in any court may abandon the excess and, on proving his case, recover such amount; and the judgment of the court in respect of that amount shall be in full discharge of all demands in respect of such cause of action, and entry of the judgment shall be made accordingly.
ORDER VII
SERVICE OF PROCESS
1. Service may be effected by any person
(1) Personal service of a petition, notice, summons, order or other document of which service is required may be made by any person.
(2) Any person serving any document shall, on the request of the party served, explain to such party the contents of such document. Document to be explained
2. When proof shall be oral or by affidavit [O.7 First Schedule, Form 11]
Except where service is effected by a court messenger, proof of service shall be oral or by affidavit, and the court, if not satisfied that service has been properly effected, may direct that it be effected by a court messenger before proceeding further with the hearing of the cause or matter:
Provided that, where it shall have been ordered that service be by registered post, such service shall, in the absence of anything to the contrary, be deemed to have been effected on production to the court of a certificate purporting to be under the hand of the defendant and obtained in terms of the regulations made under the Postal Services Act that the letter containing the document has been received by him.
3. Service to be personal
Unless, in any case, the court thinks it just and expedient otherwise to direct, service shall be personal; that is, the document to be served shall be delivered to the person to be served himself.
4. Original need not be shown
Service shall be completely effected by the delivery of a duplicate or attested copy of any document, without the exhibition of any original:
Provided that the person serving any document shall, if so required by the person to be served, exhibit to him the original of the document in question.
5. Service other than personal
Where it appears to the court (either after or without an attempt at personal service) that, for any reason, personal service cannot be conveniently effected, the court may order that service be effected either-
(a) delivery to inmate
by delivery of the document to some adult inmate at the usual or last known place of abode or business of the person to be served; or
(b) to agent
by delivery thereof to some person being an agent of the person to be served, or to some other person, on it being proved that there is reasonable probability that the document will, through that agent or other person, come to the knowledge of the person to be served; or
(c) by advertisement
by advertisement in the Gazette, or in some newspaper circulating within the jurisdiction of the court; or
(d) by notice
by notice up at the court house, or some other place of public resort, of the province or district wherein the proceeding in respect of which the service is to be made is instituted, or at the usual or last known place of abode or of business of the person to be served; or
(e) by placing the document in an envelope and addressing and posting the same by prepaid registered post to the party to be served at his usual place of abode or of business.
6. Varying order of service
An order for service may be varied from time to time with respect to the mode of service directed by the order.
7. Dies non
Service of any process shall not be made on a Sunday, Good Friday or Christmas Day.
8. Service on Government officers [O.7]
When the party to be served is in the service of the Government, the clerk of the court may transmit the document to be served to the head officer of the department in which such party is employed, for the purpose of being served on him, if it shall appear to the court that it may be most conveniently so served, and such head officer shall cause the same to be served on the proper party accordingly, and the person effecting such service shall be deemed to be a court messenger for the purposes of these rules.
9. On partners
(1) Where partners are sued in the name of their firm, the writ or other document shall be served either upon any one or more of the partners, or at the principal place of business of the partnership upon any person having, at the time of service, the control or management of the partnership business there; and such service shall be deemed good service upon the firm.
(2) Where a writ is issued against a firm, every person upon whom it is served shall be informed by notice in writing given at the time of such service whether he is served as a partner or as a person having the control or management of the partnership business, or in both characters. In default of such notice, the person served shall be deemed to be served as a partner.
10. On prisoner
Where the person on whom service is to be effected is a prisoner in a prison, it shall be sufficient service to deliver the writ or document at the prison to the gaoler or person appearing to be the head officer in charge thereof, who shall cause the same to be served on such prisoner.
11. On person in asylum or prison
Where the person on whom service is to be effected is employed and dwells in any lunatic or other public asylum or in any prison, it shall be sufficient service to deliver the writ or document to the gatekeeper or lodgekeeper of such asylum or prison, who shall cause the same to be served on such person.
12. Where defendant resides out of but carries on business within Zambia
Where the suit is against a defendant residing out of but carrying on business within Zambia in his own name, or under the name of a firm, through an authorised agent, and such suit is limited to a cause of action which arose within the jurisdiction of the court, the writ or document may be served by giving it to such agent, and such service shall be equivalent to personal service on the defendant.
13. When court may direct service out of Zambia [O.7]
Service out of Zambia may be allowed by the court whenever the whole or any part of the subject-matter of the suit is land or stock or other property situate within its jurisdiction, or any act, deed or thing affecting such land, stock or property; and whenever the contract which is sought to be enforced or rescinded, dissolved, annulled or otherwise affected in any such suit, or for the breach whereof damages or other relief are or is demanded in such suit, was made or entered into within its jurisdiction; and whenever there has been a breach within its jurisdiction of any contract, wherever made; and whenever any act or thing sought to be restrained or removed, or for which damages are sought to be recovered, was or is to be done or is situate within its jurisdiction.
14. Application for leave to serve out of Zambia
Every application for an order for leave to serve a writ or document on a defendant out of Zambia shall be supported by evidence, by affidavit or otherwise, showing in what place or country such defendant is or probably may be found, and the grounds upon which the application is made.
15. Order to prescribe mode of service
Any order giving leave for service out of Zambia shall prescribe the mode of service and the date of hearing, and the court may receive an affidavit of such service having been effected as prima facie evidence thereof.
16. Service in another district
Where a writ or other document is required to be served in a district in which the court has no jurisdiction, the clerk of the court from whose office the writ or other document is issued shall, unless the Magistrate sees fit to direct otherwise, transmit the same and a copy thereof together with any other documents annexed thereto and copies thereof, to the clerk of the court having jurisdiction in the district in question for service.
17. Where violence threatened
Where the officer of court or person charged with the service of any writ or document on any person is prevented by the violence or threats of such person, or any other person in concert with him, from personally serving the writ or document, it shall be sufficient to inform the person to be served of the nature of the writ or document, and to leave the writ or document as near such person as is practicable.
17A. Electronic service of documents
(1) Where a document referred to in order 1 is filed electronically, the service of such document by electronic means shall be deemed to be personal service.
(2) Where a document is served electronically, the transmission shall contain a notice, in writing, explaining the contents of such document.
(3) Where a document has been served electronically---
(a) the document shall be deemed to have been received when it arrives at the server for incoming communications in connection with which the user identification or signature of the person to be served is associated; and
(b) the burden of disproving the service shall lie with the served party.
[Rule 17A ins by rule 5 of SI 29 of 2012.]
18. Certificate of service
In all cases where service of any writ or document shall have been effected by a court messenger, a certificate of service signed by such officer shall, on production, without proof of signature, be prima facie evidence of service.
19. Returns of service [First Schedule, Form 12]
In all cases the bailiff or other officer of court charged with the service of any particular process shall, not later than fourteen days after the receipt of the process, render a return in the prescribed form to the court in duplicate and the duplicate thereof shall thereupon be despatched by the clerk of the court to the party requiring the same to be served, or his solicitors, specifying whether the same has been served and, if not, giving reasons why the same has not been so served.
ORDER VIII
PARTIES
1. Suit on behalf of others
If any plaintiff sues, or any defendant is sued, in any representative capacity, it shall be expressed on the writ. The court may order any of the persons represented to be made parties either in lieu of or in addition to the previously existing parties.
2. Joint ground of suit
Where a person has jointly with other persons an alleged ground for instituting a suit, all those other persons ought ordinarily to be made parties to the suit.
3. Where joint interest, parties may be authorised to sue or defend for others
Where more persons than one have the same interest in one suit, one or more of such persons may be authorised to sue or to defend in such suit for the benefit of or on behalf of all parties so interested.
4. Joint and several demand
Where a person has a joint and several demand against two or more persons, either as principals or sureties, it is not necessary for him to bring before the court as parties to a suit concerning that demand all the persons liable thereto, and he may proceed against any one or more of the persons severally or jointly and severally liable. Where a defendant claims contribution, indemnity or other remedy or relief over against any other person, he may apply to have such person made a party to the suit.
5. Non-joinder
(1) If it shall appear to the court, at or before the hearing of a suit, that all the persons who may be entitled to, or who claim some share or interest in, the subject-matter of the suit, or who may be likely to be affected by the result, have not been made parties, the court may adjourn the hearing of the suit to a future day, to be fixed by the court, and direct that such persons shall be made either plaintiffs or defendants in the suit, as the case may be. In such case, the court shall issue a notice to such persons, which shall be served in the manner provided by these Rules for the service of a writ of summons, or in such manner as the court thinks fit to direct; and, on proof of the due service of such notice, the person so served, whether he shall have appeared or not, shall be bound by all proceedings in the cause:
Provided that a person so served, and failing to appear within the time limited by the notice for his appearance, may, at any time before judgment in the suit, apply to the court for leave to appear, and such leave may be given upon such terms (if any) as the court shall think fit.
(2) Misjoinder
The court may, at any stage of the proceedings, and on such terms as appear to the court to be just, order that the name or names of any party or parties, whether as plaintiffs or as defendants, improperly joined be struck out.
(3) No suit shall be defeated by reason of non-joinder or misjoinder of parties. [O.8, 9]
6. Claims by the Government
Claims by the Government against any person may be brought by the Attorney-General or by any officer authorised by law to prosecute such claims on behalf of the Government, as the case may be.
7. Proceeding by or against partners
Any persons claiming or being liable as co-partners may sue or be sued in the name of their respective firms (if any); and any party to an action may, in such case, apply to the court for a statement of the names of the persons who are co-partners in any such firm, to be furnished in such manner and verified on oath or otherwise as the court may direct.
8. Distinct causes of action in one writ
In case a writ states two or more distinct causes of action by and against the same parties, and in the same rights, the court may, either before or at the hearing, if it appears inexpedient to try the different causes of action together, order that the trials be had separately, and make such order as to adjournment and costs as justice requires.
9. Misjoinder of actions
In case a writ states two or more distinct causes of action, but not by and against the same parties, or by and against the same parties but not in the same rights, the writ may, on the application of any defendant, be amended or dismissed, as justice may require.
ORDER IX
PARTICULARS OF CLAIM
1. Particulars
The particulars of claim to be entered on or attached to the writ of summons shall set out the nature and extent of the relief asked for and shall be such as to give the defendant reasonably sufficient information as to the details of the claim, and the amount claimed for costs and court fees shall be shown on the writ.
2. Abandonment or set-off
Where part of the claim has been abandoned in accordance with order VI, rule 8, or where a set-off is admitted by the plaintiff, the particulars of claim shall show such abandonment or set-off as the case may be.
3. More than one claim
Where more than one claim is contained in the same writ of summons, the particulars of each claim or the relief sought in respect thereof shall be shown separately.
4. Assignee
Where the plaintiff sues as an assignee, the particulars shall show the date of the assignment and the name and description of the assignor.
5. Instrument required to be presented [O.9, 10]
Where the plaintiff sues upon an instrument which is required by law to have been presented before it can be sued upon, the particulars shall state that it was in fact presented and upon what date it was so presented.
6. Further and better particulars
The court may, on the application of the defendant or on its own motion, order further and better particulars.
7. Amendment of particulars
Particulars of claim shall not be amended except by leave of the court, but the court may, on any application for leave to amend, grant the same, on it appearing that the defendant will not be prejudiced by the amendment. Otherwise, the court may refuse leave or grant the same, on such terms as to notice, adjournment or costs as justice requires.
8. Amount of judgment not to exceed claim
The plaintiff shall not, at the hearing, obtain a judgment for any sum exceeding that stated in the particulars except for subsequent interest and for costs.
9. Amendment at hearing
Any variance between the items contained in the particulars and the items proved at the hearing may be amended at the hearing, either at once or on such terms as to notice, adjournment or costs as justice requires.
ORDER X
GUARDIAN FOR PURPOSES OF SUIT
1. Court may appoint guardians to infant defendants and persons of weak mind
Where, on default of a defendant in answering or otherwise defending the suit, after service of the writ, it appears to the court that he is an infant, or a person of weak or unsound mind, so that he is unable by himself to defend the suit, the court may, if it thinks fit, on the application of the plaintiff or of its own motion, appoint, by order, some fit person to be guardian of the defendant for the purposes of the suit by whom he may defend it.
2. Notice and service thereof
Before such an order is made, the court shall cause such notice as it thinks reasonable to be served on or left at the dwelling-house of the person with whom or under whose care the defendant is, and also, unless the court sees good reason to the contrary, in the case of an infant not residing with or under the care of his guardian, to be served on or left at the dwelling-house of his guardian.
3. Suits by infants and persons of weak mind
Infants or persons of weak or unsound mind may sue as plaintiffs by their committees or next friends on such terms as to the liability for costs and otherwise of such committees or next friends as the court shall consider just.
ORDER XI
ALTERATION OF PARTIES
1. Where change of interest, court may make order enabling suit to proceed
Where, after the institution of a suit, any change or transmission of interest or liability occurs in relation to any party to the suit, or any party to the suit dies or becomes incapable of carrying on the suit, or the suit in any other way becomes defective or incapable of being carried on, any person interested may obtain from the court any order requisite for curing the defect, or enabling or compelling proper parties to carry on the proceedings:
Provided that any person served with such an order may, within such time as the court in the order directs, apply to the court to discharge or vary the order.
2. Death of party not to abate suit, if cause of action survive
The death of a plaintiff or defendant shall not cause the suit to abate if the cause of action survive.
3. Cause of action surviving to surviving plaintiff or plaintiffs
If there be two or more plaintiffs or defendants, and one of them die, and if the cause of action survive to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, and against the surviving defendant or defendants.
4. Cause of action surviving to surviving plaintiff and legal representative of decreased plaintiff
If there be two or more plaintiffs and one of them die, and if the cause of action shall not survive to the surviving plaintiff or plaintiffs alone, but shall survive to them and the legal representative of the deceased plaintiff jointly, the court may, on the application of the legal representative of the deceased plaintiff, enter the name of such representative in the suit in the place of such deceased plaintiff, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, and such legal representative of the deceased plaintiff. If no application shall be made to the court by any person claiming to be the legal representative of the deceased plaintiff, the suit shall proceed at the instance of the surviving plaintiff or plaintiffs; and the legal representative of the deceased plaintiff shall, after notice to appear, be interested in, and shall be bound by, the judgment given in the suit in the same manner as if the suit had proceeded at his instance conjointly with the surviving plaintiff or plaintiffs, unless the court shall see cause to direct otherwise.
5. Death of sole or surviving plaintiff [O, 11, 12]
In case of the death of a sole plaintiff, or sole surviving plaintiff, the court may, on the application of the legal representative of such plaintiff, enter the name of such representative in the place of such plaintiff in the suit, and the suit shall thereupon proceed; if no such application shall be made to the court within what it may consider a reasonable time by any person claiming to be the legal representative of the deceased sole plaintiff or sole surviving plaintiff, it shall be competent to the court to make an order that the suit shall abate, and to award to the defendant the reasonable costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased sole plaintiff or surviving plaintiff; or the court may, if it thinks proper, on the application of the defendant, and upon such terms as to costs as may seem fit, make such order for bringing in the legal representative of the deceased sole plaintiff or surviving plaintiff, and for proceeding with the suit in order to reach a final determination of the matters in dispute, as may appear just and proper in the circumstances of the case.
6. Dispute as to legal representative
If any dispute arise as to who is the legal representative of a deceased plaintiff, it shall be competent to the court either to stay the suit until the fact has been duly determined in another suit, or to decide, before the hearing of the suit, who shall be admitted to be such legal representative for the purpose of prosecuting the suit.
7. Death of one of several defendants or of a sole surviving defendant
If there be two or more defendants, and one of them die, and the cause of action shall not survive against the surviving defendant or defendants alone, and also in case of the death of a sole defendant or sole surviving defendant, where the action survives, the plaintiff may make an application to the court specifying the name, description and place of abode of any person whom the plaintiff alleges to be the legal representative of such defendant, and whom he desires to be made the defendant in his stead; and the court shall thereupon enter the name of such representative in the suit in the place of such defendant, and shall issue an order to him to appear on a day to be therein mentioned to defend the suit; and the case shall thereupon proceed in the same manner as if such representative had originally been made a defendant and had been a party to the former proceedings in the suit.
8. Bankruptcy of plaintiff
The bankruptcy of the plaintiff, in any suit which the assignee or trustee might maintain for the benefit of the creditors, shall not be a valid objection to the continuance of such suit, unless the assignee or trustee shall decline to continue the suit and to give security for the costs thereof, within such reasonable time as the court may order; if the assignee or trustee neglect or refuse to continue the suit and to give such security within the time limited by the order, the defendant may, within eight days after such neglect or refusal, plead the bankruptcy of the plaintiff as a reason for abating the suit.
ORDER XII
THIRD PARTY PROCEDURE
1. Third-party notice
(1) Where a defendant claims as against any person not already a party to the suit (in this order called the third party)-
(a) that he is entitled to contribution or indemnity; or
(b) that he is entitled to any relief or remedy relating to or connected with the original subject-matter of the suit and substantially the same as some relief or remedy claimed by the plaintiff; or [O.12]
(c) that any question or issue relating to or connected with the said subject-matter is substantially the same as some question or issue arising between the plaintiff and the defendant, and should properly be determined not only as between the plaintiff and the defendant but as between the plaintiff and the defendant and the third party or between any or either of them;
the defendant may on the return day apply to the court on notice for leave to issue and serve a "third-party notice" and shall file a copy of the third-party notice with the application.
(2) Notice of the application shall be served on the plaintiff and filed with the clerk of the court at any time before the time of hearing on the return day as shown on the writ of summons.
(3) The application shall be heard on the return day and on the hearing thereof the court may grant or refuse leave. If leave be granted the court shall give directions as to the time for service of the third-party notice and shall fix another return day on which the third party shall be required to appear.
(4) The notice shall be in the prescribed form and shall state the nature and grounds of the claim or the nature of the question or issue sought to be determined, the nature and extent of any relief or remedy claimed and the return day fixed by the court. [First Schedule, Form 66]
(5) The notice shall be served on the third party personally, and shall be accompanied by a copy of the summons in the action and of the particulars annexed thereto.
(6) Where leave shall have been granted in accordance with this rule to issue and serve a third- party notice, the third party shall, in all respects, save as hereinafter in this order provided, be deemed to be a defendant to the suit and the third-party notice with copy of writ and particulars annexed, save as hereinafter in this order provided, be deemed in regard to the third party to be the writ of summons in the suit.
2. Default by third party
(1) If the third party disputes the plaintiff's claim as against the defendant by whom the notice has been given or his own liability to the defendant, he shall do such things as are directed by these Rules to be done by a defendant who disputes the plaintiff's claim in any writ of summons served upon him.
(2) If the third party does not appear on the return day, he shall be deemed to admit the validity of and be bound by any judgment given in the suit, whether by consent or otherwise, and by any decision therein on any question specified in the notice, and when contribution or indemnity or some other relief or remedy is claimed against him in the notice, he shall be deemed to admit his liability in respect of such contribution or indemnity or other relief or remedy. [ O.12]
(3) If a third party does not appear on the return day and the defendant by whom the notice has been given suffers judgment by default, such defendant shall be entitled, at any time after satisfaction of the judgment against him, or before such satisfaction by leave of the court, to have judgment entered against the third party to the extent of any contribution or indemnity claimed in the third-party notice or by leave of the court have such judgment entered in respect of any other relief or remedy claimed as the court shall direct:
Provided that it shall be lawful for the court to set aside or vary such judgment against the third party upon such terms as it thinks just.
3. Conduct of trial
(1) Subject to any directions which may have been given by the court before the hearing, the court shall have full power at the hearing to direct what part the third party shall take in the hearing and generally how the trial shall be conducted.
(2) As between the defendant by whom the third-party notice has been given and the third party, the court may grant to either party any relief or remedy which might properly have been granted if the claim against the third party had been made in a separate suit and may give such judgment for either party against the other as may be just:
Provided that execution against the third party shall not be issued without leave of the court until the defendant has satisfied the judgment in the same suit against him.
4. Fourth and subsequent parties
(1) Where a third party makes as against any person not already a third party to the suit such a claim as is defined in sub-rule (1) of rule 1, the provisions of this order regulating the rights and procedure as between the defendant and the third party shall apply as between the third party and such other person, and "third-party notice" and "third party" shall apply to and include every notice issued against a fourth or subsequent party and every fourth or subsequent party served with such a notice respectively.
(2) Where a person served with a notice under this rule by a third party in turn makes such a claim as is defined in sub-rule (1) of rule 1 against another person not already a party to the suit, this order as applied by this rule shall have effect as regards such further person and any other further person or persons so served and so on successively.
5. Co-defendants [O.12, 13, 14 ]
Where a defendant makes against any other defendant in the same suit such a claim as is defined in sub-rule (1) of rule 1, he may without any leave issue and serve on such other defendant a notice making such claim, and the same procedure shall be adopted for the determination of the claim as would be appropriate under this order if such other defendant were a third party:
Provided that nothing herein contained shall prejudice the rights of the plaintiff against any defendant.
6. Counter-claim
In this order, "plaintiff" and "defendant" respectively shall include a plaintiff and a defendant to a counter-claim.
ORDER XIII
DISCONTINUANCE OF SUITS
1. Discontinuance of suit
If, before the date fixed for the hearing, the plaintiff desires to discontinue any suit against all or any of the defendants, or to withdraw any part of his alleged claim, he shall give notice in writing of discontinuance or withdrawal to the clerk of the court and to every defendant as to whom he desires to discontinue or withdraw. After the receipt of such notice, such defendant shall not be entitled to any further costs, with respect to the matter so discontinued or withdrawn, than those incurred up to the receipt of such notice unless the court shall otherwise order; and such defendant may apply ex parte for an order against the plaintiff for the costs incurred before the receipt of such notice and of attending the court to obtain the order. Such discontinuance or withdrawal shall not be a defence to any subsequent suit. If, in any other case, the plaintiff desires to discontinue any suit or to withdraw any part of his alleged claim, or if a defendant desires to discontinue or withdraw his counter-claim or any part thereof, such discontinuance or withdrawal may, in the discretion of the court, be allowed on such terms as to costs and as to any subsequent suit and otherwise as to the court may seem just.
2. Stay of subsequent suit
If any subsequent suit shall be brought before payment of the costs of a discontinued suit, for the same or substantially the same cause of action, the court may order a stay of such subsequent suit until such costs shall have been paid.
ORDER XIV
PLACE OF TRIAL AND INSTITUTION OF SUITS
1. Place of trial, etc.
Subject to the law respecting transference, the place for the trial of any suit or matter shall be regulated as follows-
(a) Suits upon contract [O.14, 15]
All suits arising out of the breach of any contract may be commenced and determined in any court having jurisdiction in the district in which such contract ought to have been performed, or in which the defendant resides or carries on business;
(b) Other suits
All other suits may be commenced and determined in any court having jurisdiction in any district in which the defendant resides or carries on business. If there are more defendants than one, resident in different districts, the suit may be commenced in any court having jurisdiction in any one of such districts; subject, however, to any order which the court may, upon the application of any of the parties, or on its own motion, think fit to make with a view to the most convenient arrangement for the trial of such suit;
(c) Suits commenced in wrong district
In case any suit shall be commenced in any other court than that in which it ought to have been commenced, the same may, notwithstanding, be tried in the court in which it shall have been so commenced, unless the court shall otherwise direct, or the defendant shall plead specially in objection to the jurisdiction before or at the time when he is required to state his answer to or to plead to such suit;
(d) Order by Judge
No proceedings which may have been taken previously to such plea in objection shall be in any way affected thereby; but a Judge of the High Court may order that the suit be transferred to the court to which it may be proved to belong, or, failing such proof, that it be retained and proceed in the court in which it has been commenced.
ORDER XV
AMENDMENT
1. Under what circumstances
The court may, at any stage of the proceedings, either of its own motion or on the application of either party, order any proceedings to be amended, whether the defect or error be that of the party applying to amend or not; and all such amendments as may be necessary or proper for the purpose of eliminating all statements which may tend to prejudice, embarrass or delay the fair trial of the suit, and for the purpose of determining, in the existing suit, the real question or questions in controversy between the parties, shall be so made. Every such order shall be made upon such terms as to costs or otherwise as shall seem just.
ORDER XVI
ADMISSIONS
1. Notice of admissions
Any party to a suit may give notice, by his own statement or otherwise, that he admits the truth of the whole or any part of the case stated or referred to in the writ of summons, statement of claim, defence or other statement of any other party.
2. Notice to admit
Any party may call upon any other party to admit, saving just exceptions, any document or fact. [First Schedule, Forms 15 and 16]
3. Costs on refusal to make reasonable admissions
In case of refusal or neglect to admit after notice, the costs of proof of the document or fact shall be paid by the party refusing or neglecting to admit, whatever be the result of the suit, unless the court is of opinion that the refusal or neglect to admit was reasonable.
4. Judgment by consent
If the plaintiff and defendant shall agree as to the terms and conditions on which judgment shall be entered, the court, unless it sees good reason to the contrary, shall enter judgment on such terms and conditions.
ORDER XVII
SETTLEMENT OF ISSUES
1. At or before hearing
At any time before or at the hearing, the court may, if it thinks fit, on the application of any party or of its own motion, proceed to ascertain and determine what are the material questions in controversy between the parties, and may reduce such questions into writing and settle them in the form of issues, which issues, when settled, may state questions of law on admitted facts, or questions of disputed facts, or questions partly of the one kind and partly of the other.
2. Court may direct parties to prepare issues
The court may, if it thinks fit, direct the parties to prepare issues, and the same shall be settled by the court.
3. When to be settled
The issues may be settled, without any previous notice, at any stage of the proceedings at which all the parties are actually present, or at the hearing. If otherwise, notice shall be given to the parties to attend at the settlement of the issues.
4. The court may amend or frame additional issues
At any time before the decision of the case, if it shall appear to the court necessary for the purpose of determining the real question or controversy between the parties, the court may amend the issues or frame additional issues, on such terms as to it shall seem fit.
ORDER XVIII
PLEADINGS
1. Written statements; in what cases
Suit shall ordinarily be heard and determined in a summary manner without pleadings; but, where it appears to the court (for reasons recorded in the minutes) that the nature and circumstances of any case render it expedient in the interests of justice to do so, the court may order the plaintiff to file a written statement of his claim, and may likewise order the defendant to file a written statement of his defence. The filing of a statement of claim shall not necessitate, unless the court so directs, that a statement of defence shall also be filed. The order may be made at any stage of a suit, either before or at the hearing.
2. Illiterate parties
In making any such order, the court shall have regard to the condition of the parties, and shall not require any party to file a written statement who, from want of education, is incapable of preparing or understanding the same. If in any case the court considers it necessary in the interests of justice that any statement of such party should be reduced into writing prior to the hearing, the court may direct that the same be taken down in writing by the clerk of the court, and, after verifying the statement so prepared by oral examination of the party, where necessary, may direct, if it thinks fit, that such statement be filed as a pleading.
3. Where pleadings ordered
Whenever any pleading is ordered to be filed, the provisions of the following rules shall be observed-
(a) The pleading to state all material facts
Every pleading shall contain a statement of all the material facts on which the party pleading relies, but not the evidence by which they are to be proved, such statement being divided into paragraphs numbered consecutively, and each paragraph containing, as nearly as may be, a separate allegation;
(b) How facts to be stated
The facts shall be alleged positively, precisely and distinctly, and as briefly as is consistent with a clear statement;
(c) The relief claimed to be stated
Every statement of claim shall state specifically the relief which the plaintiff claims, either simply or in the alternative, and may also ask for general relief, and the same rule shall apply to any counter-claim made or relief claimed by the defendant in his statement of defence;
(d) Grounds of claim founded on separate facts to be separately stated
Where the plaintiff seeks relief in respect of several distinct claims or causes of complaint founded upon separate and distinct facts, they shall be stated, as far as may be separately and distinctly. And the same rule shall apply where the defendant relies upon several distinct grounds of set-off or counter-claim founded upon separate and distinct facts;
(e) Defendant's pleading to meet allegations in statement of claim
The defendant's pleadings shall deny all such material allegations in the statement of claim as the defendant intends to deny at the hearing. Every allegation of fact, if not denied specifically or by necessary implication or stated to be not admitted, shall be taken as established at the hearing;
(f) Allegations shall not be met generally but specifically
It shall not be sufficient to deny generally the facts alleged by the statement of claim, but the defendant must deal specifically therewith, either admitting or denying the truth of each allegation of fact seriatim, as the truth or falsehood of each is within his knowledge, or (as the case may be) stating that he does not know whether such allegation or allegations is or are true or otherwise;
(g) Denial of fact must answer point of substance
When a party denies an allegation of fact, he must not do so evasively, but answer the point of substance. And when a matter of fact is alleged with divers circumstances it shall not be sufficient to deny it as alleged along with those circumstances, but a fair and substantial answer must be given;
(h) Admissions: their effect
The statement of defence shall admit such material allegations in the statement of claim as the defendant knows to be true or desires to be taken as admitted, and such allegations may be taken as established without proof thereof;
(i) Allegation of new facts in defence
The statement of defence must allege any fact not stated in the statement of claim on which the defendant relies in defence, as establishing, for instance, fraud on the part of the plaintiff, or showing that the plaintiff's right to recover, or to any relief capable of being granted on the statement of claim, has not yet accrued, or is released or barred or otherwise gone;
(j) Set-off or counter claim to be pleaded
Where any defendant seeks to rely upon any facts, as supporting a right of set-off or counter-claim, he shall in his statement of defence, state specifically that he does so by way of set-off or counter-claim, and the particulars of such set-off or counter-claim shall be given;
(k) Evidence in denial of allegation or in support of defence not set up in pleading
The statement of defence of a defendant shall not debar him, at the hearing, from disproving any allegation of the plaintiff not admitted in the statement of defence, or from giving evidence in support of a defence not expressly set up in the statement of defence except where the defence is such as, in the opinion of the court, ought to have been expressly set up in the statement of defence, or is inconsistent with the statements thereof, or is, in the opinion of the court, likely to take the plaintiff by surprise and to raise new issues not fairly arising out of the pleadings as they stand and such as the plaintiff ought not to be then called upon to meet;
(l) Costs in certain cases
Where the court shall be of opinion that any allegations of fact, denied or not admitted by any pleading, ought to have been admitted, the court shall make such order as may be just with respect to costs;
(m) verification of pleadings
The court may order any plaintiff or defendant to verify his statement, or any part thereof, on oath or affidavit;
(n) Filing and service of pleadings
Every pleading shall be filed at such time as the court directs, and be served on the opposite party, if the court thinks fit, at such time and in such manner as it directs.
ORDER XIX
INQUIRIES AND ACCOUNTS
1. Questions of fact or of account may be investigated by referee
In any cause or matter in which all parties interested who are under no disability consent thereto, and also, without such consent, in any cause or matter requiring any prolonged examination of documents or accounts or any scientific or local examination which cannot, in the opinion of the court, conveniently be made by the court in the usual manner, the court may, at any time, on such terms as it may think proper, order any question or issue of fact, or any question of account arising therein, to be investigated or tried before a referee, to be agreed on between the parties or appointed by the court.
2. Instructions to referee
Where an order has been made under the last preceding rule, the court shall furnish the referee with such part of the proceedings and such information and detailed instructions as may appear necessary for his guidance, and shall direct the parties, if necessary, to attend upon the referee during the inquiry. The instructions shall specify whether the referee is merely to transmit the proceedings which he may hold on the inquiry, or also to report his own opinion on the point referred for his investigation.
3. Interim inquiries or accounts
The court may, at any stage of the proceedings, direct any necessary inquiries or accounts described in rule 1 to be made or taken, notwithstanding that it may appear that there is some special or further relief sought for or some special issue to be tried, as to which it may be proper that the cause or matter should proceed in the ordinary manner.
4. General powers of referee
The referee may, subject to the order of the court, hold the inquiry at or adjourn it to any place which he may deem most convenient, and have any inspection or view which he may deem expedient for the disposal of the controversy before him. He shall, so far as practicable, proceed with the inquiry de die in diem.
5. Evidence
Subject to any order to be made by the court ordering the inquiry, evidence shall be taken at any inquiry before a referee, and the attendance of witnesses may be enforced by subpoena; and every such inquiry shall be conducted in the same manner, as nearly as circumstances will admit, as trials before a Magistrate, but not so as to make the tribunal of the referee a public court of justice.
6. Referee's authority in the inquiry
Subject to any order as mentioned in the last preceeding rule, the referee shall have the same authority in the conduct of any inquiry as a Magistrate when presiding at any trial.
7. Referee may report questions or facts specially
The referee may, before the conclusion of any inquiry before him, or by his report under the reference, submit any question arising therein for the decision of the court, or state any facts specially.
8. Effect of report by referee
The proceedings and report in writing of the referee shall be received in evidence in the case, unless the court may have reason to be dissatisfied with them, and the court shall have power to draw such inferences from the proceedings or report as shall be just.
9. Powers of court
The court shall have power to require any explanations or reasons from the referee, and to remit the cause or matter, or any part thereof, for further inquiry or consideration to the same or any other referee, as often as may be necessary, and shall pass such ultimate judgment or order as may appear to be right and proper in the circumstances of the case.
ORDER XX
APPEARANCE OF PARTIES
1. Court may permit party to appear by proxy
In every cause or matter pending before the court, in case it shall appear to the satisfaction of the court that any plaintiff or defendant who may not be represented by barrister or solicitor is prevented by some good or sufficient cause from attending the court in person, the court may, in its discretion, permit any other person who shall satisfy the court that he has authority in that behalf to appear for such plaintiff or defendant.
2. Proceeding without authority
Any person doing any act or taking any proceeding in the name or on behalf of another person, not being lawfully authorised thereunto, and knowing himself not to be so authorised, shall be guilty of contempt of court.
ORDER XXI
ARREST OF ABSCONDING DEFENDANT
1. Issue of order on affidavit
The court may make an order for the arrest of any person in pursuance of section 10 of the Debtors Act, where proof of the matters therein mentioned shall be made by affidavit in the prescribed form-[First Schedule, Form 17.]
Provided that the court in any case, if it shall see fit, may require evidence otherwise than by affidavit.
2. Form of warrant [O.21, 22 ]
Where the court makes an order for the arrest of any person in pursuance of section 10 of the Debtors Act, it shall issue a warrant in the prescribed form. [First Schedule, Form 18.]
3. Security
(1) Subject to the limitation mentioned in section 10 of the Debtors Act, the security to be given by a person so arrested shall be in such amount as the court may consider just and may be given by deposit of money or valuable property or by way of bond to be executed by himself with or without such surety or sureties as to the court may seem fit. [First Schedule, Forms 19 and 20]
(2) Such security may be given at any time.
4. Deposit by plaintiff
It shall be lawful for a court, before issuing the warrant, to require the plaintiff to deposit in court such sum as the court may think sufficient for the costs of executing the warrant and of bringing the defendant before the court and, where necessary, of sending him in custody to the court in which the suit is depending.
5. Subsistence of person arrested
The expenses incurred for the subsistence in prison of the person so arrested shall be paid by the plaintiff in the action in advance. The court shall fix whatever allowance it shall think sufficient for such subsistence, not exceeding seventy-five ngwee per diem. The amount so disbursed may be recovered by the plaintiff as costs in the suit, unless the court shall otherwise order. The court may release the person so imprisoned on failure by the plaintiff to pay the subsistence money, or in the case of serious illness, order his removal to hospital. During the period of such person's stay in hospital, the subsistence allowance shall be paid by the plaintiff, unless the court shall see fit, in any case, to order otherwise.
[Am by GN 208 of 1964.]
ORDER XXII
INTERIM ATTACHMENT OF PROPERTY
1. In what cases
If the defendant, in any suit for an amount or value of twenty kwacha or upwards, with intent to obstruct or delay the execution of any decree that may be passed against him, is about to dispose of his property, or any part thereof, or to remove any such property from Zambia, the plaintiff may apply to the court, either at the time of the institution of the suit, or at any time thereafter until final judgment, to call upon the defendant to furnish sufficient security to fulfil any decree that may be made against him in the suit, and, on his failing to give such security, to direct that any property, movable or immovable, belonging to the defendant, shall be attached until the further order of the court.
2. Application for attachment [O.22]
The application shall contain a specification of the property required to be attached and the estimated value thereof, so far as the plaintiff can reasonably ascertain the same; and the plaintiff shall, at the time of making the application, declare that, to the best of his information and belief, the defendant is about to dispose of or remove his property with such intent as aforesaid.
3. Form of order
If the court, after making such investigation as it may consider necessary, shall be satisfied that the defendant is about to dispose of or remove his property, with intent to obstruct or delay the execution of the decree, it shall be lawful for the court to order the defendant, within a time to be fixed by the court, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the court, when required, the said property, or the value of the same, or such portion thereof as may be sufficient to fulfil the decree, or to appear and show cause why he should not furnish security. The court may also, in the order, direct the attachment, until further order, of the whole or any portion of the property specified in the application.
4. Where defendant fails to show cause or give security
If the defendant fails to show such cause, or to furnish the required security within the time fixed by the court, the court may direct that the property specified in the application, if not already attached, or such portion thereof as shall be sufficient to fulfil the decree, shall be attached until further order. If the defendant shows such cause, or furnishes the required security, and the property specified in the application, or any portion of it, shall have been attached, the court shall order the attachment to be withdrawn. [First Schedule, Form 21]
5. Rights of third parties not to be affected
The attachment shall not affect the rights of persons not parties to the suit, and, in the event of any claim being preferred to the property attached before judgment, such claim shall be investigated in the manner prescribed for the investigation of claims to property attached in execution of a decree.
6. Removal of attachment
In all cases of attachment before judgment, the court shall, at any time, remove the same on the defendant furnishing security as hereinbefore required together with security for the costs of the attachment.
7. In what courts proceedings may be taken
The application may be made to any court having jurisdiction in the district where the defendant or, in case of emergency, where the property proposed to be attached may be, and such court shall make such order as shall seem just. In case an order for the attachment of property shall be issued by a different court from that in which the suit is depending, such court shall, on the request of either of the parties, transmit the application and evidence therein to the court in which the suit is so depending, retaining the property in the meantime when attached, or taking sufficient security for its value, and the court in which the suit is depending shall thereupon examine into and proceed in the application in accordance with the foregoing provisions, in such manner as shall seem just.
ORDER XXIII
INTERIM INJUNCTIONS, ETC.
1. To stay waste, damage or alienation appointment of receiver
In any suit in which it shall be shown, to the satisfaction of the court, that any property which is in dispute in the suit is in danger of being wasted, damaged or alienated by any party to the suit, it shall be lawful for the court to issue an injunction to such party, commanding him to refrain from doing the particular act complained of, or to give such order, for the purpose of staying and preventing him from wasting, damaging or alienating the property, as to the court may seem meet, and, in all cases in which it may appear to the court to be necessary for the preservation or the better management or custody of any property which is in dispute in a suit, it shall be lawful for the court to appoint a receiver or manager of such property, and, if need be, to remove the person in whose possession or custody the property may be from the possession or custody thereof, and to commit the same to the custody of such receiver or manager, and to grant to such receiver or manager all such powers for the management or the preservation and improvement of the property, and the collection of the rents and profits thereof, and the application and disposal of such rents and profits, as to the court may seem proper.
2. Orders for sale of perishable goods
It shall be lawful for the court, on the application of any party to a suit, to make any order for the sale by any person named in such order, and in such manner and on such terms as to the court may seem desirable, of any goods, wares or merchandise, the right to which is in dispute in the suit, which may be of a perishable nature or likely to depreciate from keeping, or which, for any other just and sufficient reason, it may be desirable to have sold at once.
3. Detention and inspection of property in dispute
It shall be lawful for the court, upon the application of any party to a suit, and upon such terms as may seem just, to make any order for the detention, preservation or inspection of any property being the subject of such suit, and, for all or any of the purposes aforesaid, to authorise any person or persons to enter upon or into any land or building in the possession of any party to such suit, and, for all or any of the purposes aforesaid, to authorise any samples to be taken, or any observations to be made or experiments to be tried, which may seem necessary or expedient for the purpose of obtaining full information or evidence.
4. Orders to restrain breaches of contract or torts
In any suit for restraining the defendant from the committal of any breach of contract or other injury, and whether the same be accompanied by any claim for damage or not, it shall be lawful for the plaintiff, at any time after the commencement of the suit, and whether before or after judgment, to apply to the court for an injunction to restrain the defendant from the repetition or the continuance of the breach of contract or wrongful act complained of, or the committal of any breach of contract or injury of a like kind arising out of the same contract, or relating to the same property or right, and such injunction may be granted by the court on such terms as to the duration of the injunction, keeping an account, giving security or otherwise, as to the court shall seem reasonable and just: [O.23, 24]
Provided always that any order for an injunction may be discharged, varied or set aside by the court on application made thereto by any party dissatisfied with such order.
5. Notice of application
The court may, in every case, before granting an injunction or order as aforesaid, direct such reasonable notice of the application for the same to be given to the opposite party as it shall see fit.
ORDER XXIV
EQUITABLE RELIEF, COUNTER-CLAIM, SET-OFF
1. Equitable defence
Every suit implies an offer to do equity in the matter thereof, and admits of any equitable defence.
2. Equitable relief
The plaintiff may obtain any such equitable relief as the facts stated and proved entitle him to, though not specifically asked.
3. Counter-claim: set-off
A defendant in an action may set off, or set up by way of counter-claim against the claim of the plaintiff, any right or claim, whether such set-off or counter-claim sound in damages or not, and such set-off or counter-claim shall have the same effect as a statement of claim in a cross action so as to enable the court to pronounce a final judgment in the same action, both on the original and on the cross claim. But the court may if, in the opinion of the court, such set-off or counter-claim cannot be conveniently disposed of in the pending action, or ought not to be allowed, refuse permission to the defendant to avail himself thereof.
4. Notice of counter-claim or set-off
(1) No defendant shall be allowed to set up any such counter-claim or set-off unless he shall have lodged with the clerk of the court, four clear days before the return day, a notice in original, and as many duplicates thereof as there are plaintiffs, containing his name and address and a concise statement of the grounds of such counter-claim or set-off, and shall have paid the same court and service fees as would be payable if he were claiming by writ of summons: [O.24, 25]
Provided that the court may, in its discretion and on such terms as may seem just, allow the defendant to set up a counter-claim or set-off, notwithstanding that such notice has not been duly lodged.
(2) On receipt of notice of counter-claim or set-off, and on due payment of the fees, the clerk of the court shall cause a duplicate of such notice to be served on the plaintiff.
(3) The provisions of order IX as to particulars of claims shall apply, as far as they are applicable, to counter-claim and set-off.
5. Defendant may have judgment for balance due on counter-claim
Where, in any action, a set-off or counter-claim is established as a defence against the plaintiff's claim, the court may, if the balance is in favour of the defendant, give judgment for the defendant for such balance, or may otherwise adjudge to the defendant such relief as he may be entitled to upon the merits of the case.
6. Payment into court where partial set-off Costs
The court, if it sees fit, may order that a defence of partial set-off shall be accompanied by payment into court of the amount to which, on the defendant's showing, the plaintiff is entitled, unless the plaintiff's claim to that amount is resisted on some other ground of defence; and, in default of such payment, the defendant shall be liable to bear the costs of the suit, even if he succeed in his defence to the extent of the set-off on which he relies.
ORDER XXV
TENDER AND PAYMENT INTO COURT
1. Payment into court
A defence alleging tender by the defendant must be accompanied by payment into court of the amount alleged to have been tendered.
2. Payment in full
(1) A defendant in an action in which there is no claim for relief other than the payment of money may, at any time before judgment, pay into court unconditionally or with an admission of liability the whole of the amount claimed in the summons and thereupon all further proceedings in the action shall be stayed save as to any costs not included in such payment.
(2) Where all costs incurred up to and including the date of payment are not included in such payment, the plaintiff shall be at liberty on the return day to apply to the court for judgment for all costs not so paid together with the costs of obtaining judgment.
(3) Money may be paid into court under this rule by one or more of several defendants sued jointly or in the alternative and shall, in such case, be accompanied by a note stating the name and address or names and addresses of the defendant or defendants who have so paid.
(4) The clerk of the court shall, on receipt of any payment into court under this rule, if time permits, send notice of such payment to the plaintiff and, if such payment was made by one or more of several defendants sued jointly or in the alternative, to every other defendant.
(5) Where money is paid into court in accordance with this rule, the clerk of the court shall, on the application of the plaintiff, pay out such money to such plaintiff without any order of the court.
3. Payment in part [O.25]
(1) A defendant in an action may, at any time before judgment, pay money into court-
(a) in satisfaction of part of the claim or part of the claim and costs or, where several causes of action are joined in one action, in satisfaction of the whole or part of the whole or part of one or more causes of action; or
(b) on account of a sum admitted by him to be due to the plaintiff.
(2) Money may be paid into court under this rule by one or more of several defendants sued jointly or in the alternative and shall, in such case, be accompanied by a note stating the name and address or the names and addresses of the defendant or defendants making the payment.
(3) Any payment made under this rule shall be deemed to be made with an admission of liability to the extent of the amount paid unless accompanied by a notice stating that liability is denied.
(4) Any payment into court under this rule shall be deemed to be made on account of the amount claimed unless accompanied by a note stating that it is made in satisfaction of the claim or, where several causes of action are joined in one action, in satisfaction of one or more of the causes of action.
(5) The clerk of the court shall, on receipt of any payment into court under this rule, if time permits, send notice of such payment to the plaintiff and, if such payment was made by one or more of several defendants sued jointly or in the alternative, to every other defendant.
4. Acceptance by plaintiff
Where any amount, being less than the whole amount of the claim and costs, is paid into court unconditionally or with an admission of liability or where the whole amount of the claim and costs is paid into court unconditionally or with an admission of liability but there is a claim for some relief other than the payment of money and the plaintiff elects to accept the amount or any one or more specified amounts paid into court in satisfaction of the whole of his claim or of the cause or causes of action to which the specified amount or amounts relate, the following provisions shall apply- [O.25]
(a) the plaintiff shall, within three days (or such greater number of days as the clerk of the court may on the direction of the Magistrate of such court insert in the notice referred to in sub-rule (5) of rule 3) after the receipt by him of such notice, file with the clerk of the court a notice of acceptance indicating the extent of such acceptance and thereupon proceedings in the action or in respect of any cause of action or in respect of any part of such action or cause of action to which such notice of acceptance relates shall be stayed;
(b) the clerk of the court shall give notice of such acceptance and of the extent of such acceptance to the defendant or, if there be more than one defendant, to each defendant;
(c) if the notice of acceptance relates to the whole claim or if it relates to one or more of several causes of action and the plaintiff within the said period of three days (or such greater number of days as may be prescribed in accordance with paragraph (a)) give notice that he abandons the other cause or causes of action, he may apply to the court for judgment to be entered in his favour for the amount of any costs properly incurred less any part of such costs as may have been included in the payment into court;
(d) where money is paid into court in accordance with this order, the clerk of the court shall, on the application of the plaintiff, pay out such money to such plaintiff without any order of the court.
5. Late acceptance by plaintiff
If a plaintiff fails to give notice of acceptance within the time limited by paragraph (a) of rule 4, he may give notice of acceptance subsequently but the money paid into court shall not be paid out without an order of the court and the court may order the plaintiff to pay all or any costs reasonably incurred by the defendant since the date of payment into court.
6. Non-acceptance by plaintiff
Where any amount referred to in rule 4 is paid into court and the plaintiff does not accept such amount (whether such non-acceptance extends to the whole amount or to any one or more of specified amounts paid into court) in satisfaction of the whole of his claim or in satisfaction of such cause or causes of action to which such specified sum or sums paid into court relate, the action shall proceed in respect of any unsatisfied part of the plaintiff's claim and if on trial judgment is given in favour of the plaintiff-
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CHAPTER 28 - SUBORDINATE COURTS ACT: SUBSIDIARY LEGISLATION
INDEX TO SUBSIDIARY LEGISLATION
Limits of Jurisdiction of Subordinate Courts Presided over by Senior Resident Magistrates
Limits of Jurisdiction of Subordinate Courts Presided over by Resident Magistrates
Subordinate Courts (Civil Jurisdiction) Rules
LIMITS OF JURISDICTION OF SUBORDINATE COURTS PRESIDED OVER BY SENIOR RESIDENT MAGISTRATES
[Section 4]
[Directions by the Chief Justice]
GN 20 of 1959,
GN 179 of 1959,
GN 8 of 1961,
GN 116 of 1962,
GN 357 of 1964,
GN 477 of 1964,
GN 478 of 1964,
GN 497 of 1964.
(1) The subordinate court presided over by the Senior Resident Magistrate, Lusaka.
Within all districts within the Central Province, the Eastern Province, the Southern Province and the Western Province.
(2) The subordinate court presided over by the Senior Resident Magistrate, Ndola.
Within all districts within the Copperbelt Province, the Northern Province and the Luapula Province.
(3) The subordinate court presided over by the Senior Resident Magistrate, Kitwe.
Within all districts within the Copperbelt Province, the North-Western Province, the Northern Province and the Luapula Province.
(4) The subordinate court presided over by the Senior Resident Magistrate, Livingstone.
Within all Districts within the Southern Province and the Western Province.
(5) The subordinate court presided over by the Senior Resident Magistrate, Mansa.
Within all Districts within the Luapula Province, the Northern Province and the Copperbelt Province.
(6) The subordinate court presided over by the Senior Resident Magistrate, Mongu.
Within all districts within the Western Province, the Southern Province and the North-Western Province.
(7) The subordinate court presided over by the Senior Resident Magistrate, Kasama.
Within all Districts within the Luapula Province and the Northern Province.
LIMITS OF JURISDICTION OF SUBORDINATE COURTS PRESIDED OVER BY RESIDENT MAGISTRATES
[Section 4]
[Directions by the Chief Justice]
GN 184 of 1957,
GN 34 of 1958,
GN 131 of 1958,
GN 307 of 1958,
GN 73 of 1959,
GN 168 of 1960,
GN 368 of 1961,
GN 497 of 1964.
SI 4 of 2000.
(1) The subordinate court presided over by the Resident Magistrate, Livingstone.
Within all districts within the Southern Province, the Central Province and the Western Province.
(2) The subordinate court presided over by the Resident Magistrate, Lusaka.
Within all districts within the Central Province, the Southern Province and the Eastern Province.
(3) The subordinate court presided over by the Resident Magistrate, Kabwe.
Within all districts within the Central Province, the Eastern Province, the Copperbelt Province, the Northern Province and the Luapula Province.
(4) The subordinate court presided over by the Resident Magistrate, Ndola.
Within all districts within the Copperbelt Province, the Northern Province, the Luapula Province, the North-Western Province and the Central Province.
(5) The subordinate court presided over by the Resident Magistrate, Luanshya.
Within all districts within the Copperbelt Province, the Northern Province, the Luapula Province, the North-Western Province and the Central Province.
(6) The subordinate court presided over by the Resident Magistrate, Kitwe.
Within all districts within the Copperbelt Province, the Northern Province, the Luapula Province, the North-Western Province and the Central Province.
(7) The subordinate court presided over by the Resident Magistrate, Mufulira.
Within all districts within the Copperbelt Province, the Northern Province, the Luapula Province, the North-Western Province and the Central Province.
(8) The subordinate court presided over by the Resident Magistrate, Chingola.
Within all districts within the Copperbelt Province, the North-Western Province, the Northern Province and the Luapula Province.
(9) The Subordinate Court Presided over by the Resident Magistrate, Chipata.
Within all Districts within the Eastern Province, the Central Province and Northern Province.
[Rule 9 subs by rule 2 of SI 4 of 2000.]
(10) The subordinate court presided over by the Resident Magistrate, Choma.
Within all Districts within the Southern Province and the Western Province.
(11) The subordinate court presided over by the Resident Magistrate, Mansa.
Within all districts within the Luapula Province, the Northern Province and the Copperbelt Province.
[Section 9]
GN 322 of 1961.
[Direction by the Chief Justice]
Subordinate courts shall use seals which are round in shape and which produce on paper a raised impression of the words "subordinate court" followed by the name of a place within the jurisdiction of each respective court.
[Section 10]
[Notices by the Chief Justice]
GN 27 of 1934,
GN 84 of 1958,
GN 371 of 1958,
GN 21 of 1959,
GN 82 of 1961,
GN 161 of 1961,
GN 3 of 1962,
GN 41 of 1962,
GN 86 of 1962,
GN 382 of 1964,
SI 421 of 1965,
SI 381 of 1967,
SI 303 of 1968.
The buildings hitherto used as subordinate courts.
Court House, Chililabombwe.
The building situate on Plot No. 25, Chililabombwe.
Court House, Chingola.
The building known as the subordinate court situate on Plot No. 377, Kitwe Road, Chingola.
Court House, Chinsali.
The building known as the subordinate court situate at the rear of the buildings erected on Plot No. P.2, Chinsali.
Court House, Choma.
The subordinate court situate on the north-east corner of Plot No. 14, Choma.
Court House, Isoka.
The building known as the subordinate court situate within the precincts of the Boma, Isoka.
Court House, Kabwe.
Plot No. 1229, Broadway, Kabwe.
Court House, Kalulushi.
The building known as the subordinate court adjoining the precincts of the Boma, Kalulushi.
Court House, Kasama.
Within the precincts of the new Boma, Kasama.
Court House, Kawambwa.
The building known as the subordinate court situate on Plot No. U.23 adjacent to the Boma, Kawambwa.
Court Houses, Kitwe.
Court no. 1 and court no. 2 situate at the subordinate court building, Drury Lane, Kitwe.
Court no. 3 and court no. 4 situate in the precincts of the old Boma building, Canberra Avenue, Kitwe.
Court Houses, Lusaka.
The subordinate courts situate in Jubilee Drive, Lusaka, and at the Boma, Lusaka.
Court House, Mansa.
Adjacent to the new Boma, Mansa.
Court House, Mbala.
The building known as the subordinate court situate at the rear of the buildings erected on plot No. 215, Mbala.
Court House, Mongu.
Situated on an unnumbered plot in Mongu Township between the Post Office and the Old Parade Ground.
Court House, Sesheke.
The building known as the subordinate court situate within the precincts of the Boma, Sesheke.
Court House, Solwezi.
The building known as the subordinate court adjoining the Boma, Solwezi.
Court House, Zambezi.
The building known as the subordinate court situate within the precincts of the Boma, Plot No. 3411, Zambezi.
[Section 25]
[Direction by the Chief Justice]
GN 26 of 1934,
GN 497 of 1964.
Ordinarily at the headquarters of the provinces and districts of Zambia.
SUBORDINATE COURTS (CIVIL JURISDICTION) RULES
[Section 57]
[Re-denominate the currency as stipulated under S 4 of Re-denomination Act, 8 of 2012, read with Bank of Zambia Act, 43 of 1996.]
Arrangement of Rules
Rule
GN 212 of 1940,
GN 141 of 1943,
GN 244 of 1944,
GN 166 of 1950,
GN 175 of 1950,
GN 313 of 1952,
GN 314 of 1952,
GN 253 of 1954,
GN 23 of 1958,
GN 81 of 1958,
GN 94 of 1958,
GN 135 of 1959,
GN 306 of 1959,
GN 137 of 1960,
GN 323 of 1960,
GN 247 of 1961,
GN 341 of 1962,
GN 180 of 1964,
GN 208 of 1964,
GN 445 of 1964,
GN 497 of 1964,
SI 22 of 1964,
SI 63 of 1964,
SI 155 of 1968,
SI 342 of 1968,
SI 91 of 1980,
SI 104 of 1986,
SI 175 of 1990,
SI 48 of 1995,
SI 87 of 1997,
SI 22 of 2001,
SI 29 of 2012,
SI 73 of 2018,
Act 57 of 1964.
[Rules by the Chief Justice]
These rules may be cited as the Subordinate Courts (Civil Jurisdiction) Rules.
In these rules, unless the context otherwise requires-
"appellate court" means the High Court;
"court" means a subordinate court;
"legal representative" means any person who is authorised by any written law to represent or appear on behalf of any party to a legal proceeding;
"mediator" means the person nominated as mediator under Order XLIII;
[Ins by r 2 of SI 73 of 2018.]
"prescribed" means prescribed by these Rules;
"proceeding" means any civil suit, action, cause or matter filed and pending in the court except as regards rights and obligations which are not at the partie's disposal;
[Ins by r 2 of SI 73 of 2018.]
"the Registrar" means the Registrar of the High Court and includes any District Registrar or Assistant Registrar of the High Court.
[Am by GN 445 of 1964.]
These rules are divided into the following orders-
Order I | General forms of process, fees, etc. |
Order II | Computation of time |
Order III | Miscellaneous provisions |
Order IV | Employment of Barristers and Solicitors |
Order V | Evidence |
Order VI | Form and commencement of suit |
Order VII | Service of process |
Order VIII | Parties |
Order IX | Particulars of claim |
Order X | Guardian for purposes of suit |
Order XI | Alteration of parties |
Order XII | Third party procedure |
Order XIII | Discontinuance of suits |
Order XIV | Place of trial and institution of suits |
Order XV | Amendment |
Order XVI | Admissions |
Order XVII | Settlement of issues |
Order XVIII | Pleadings |
Order XIX | Inquiries and accounts |
Order XX | Appearance of parties |
Order XXI | Arrest of absconding defendant |
Order XXII | Interim attachment of property |
Order XXIII | Interim injunctions, etc |
Order XXIV | Equitable relief, counter-claim, set-off |
Order XXV | Tender and payment into court |
Order XXVI | Interrogatories. Discovery and production of documents |
Order XXVII | Motions |
Order XXVIII | Listing of causes for hearing |
Order XXIX | Postponement of hearing |
Order XXX | Sittings of court |
Order XXXI | Non-attendance of parties at hearing |
Order XXXII | Proceedings on the return day |
Order XXXIII | Default procedure |
Order XXXIV | Proceedings at the hearing |
Order XXXV | Judgment |
Order XXXVI | Recording of judgments |
Order XXXVII | Affiliation and Maintenance of Children Act |
Order XXXVIII | Review |
Order XXXIX | Costs |
Order XL | Enforcement of orders |
Order XLI | Execution |
Order XLII | Composition orders |
Order XLIII | Reference to arbitration |
Order XLIV | Appeals |
Order XLV | Recovery of costs by legal practitioners |
ORDER I
GENERAL FORMS OF PROCESS, FEES, ETC.
1. Interpretation
In this order, "proper officer of the court" means any Magistrate exercising jurisdiction in that court, any clerk of the court acting under the provisions of section 34 of the Act or any officer appointed in writing as such by any Magistrate exercising jurisdiction in the particular court.
2. Sealing writs
The sealing of any writ or process shall not be necessary in addition to the signature of a Magistrate or clerk of the court, as the case may be, unless sealing is particularly prescribed by some written law or rule of court.
3. Forms
The forms in the First Schedule, or forms to the like effect, may be used in all matters, causes and proceedings to which they are applicable, with such variations as circumstances may require.
4. Provision for additional forms
In proceedings for which forms are not provided in the First Schedule or prescribed by any Act or rules or orders of court, the Registrar may, subject to the approval of the Chief Justice, from time to time, frame the forms required, using as guides those which may have been provided.
5. Fees
The fees prescribed in the Second Schedule shall be paid by the party at whose instance they are incurred, and may afterwards be recovered as costs of cause if the court shall so order. The court may, on account of the poverty of any party, although such party may not have been formally admitted to sue or defend as a pauper, or for other sufficient reasons, dispense, if it sees fit, with the payment of any fees. Where the court so dispenses with the payment of fees, a note to the effect shall be made and signed by the Magistrate and filed by the clerk of the court.
6. Mode of payment of fees
All court fees or any other fees payable under these rules shall be paid by stamps, cash, postal order or bank certified cheque.
[Am by SI 48 of 1995; 87 of 1997.]
7. Document to be stamped
The document to be stamped shall be the document indicated in the third column of the Second Schedule. Such document shall be stamped before presentation at the office of the court and, unless so stamped, such document shall not, except as aforesaid, be accepted.
8. Cancellation of stamps
Upon receipt of any such document, the proper officer of the court shall forthwith cancel such revenue stamps by means of impressing with indelible ink partly upon each and every such stamp and partly upon the document to which they are affixed, the stamp of the court with the true date of such impression and by writing his initials across or within the impression in such a manner that the stamps are clearly defaced.
9. No receipt to be issued
No receipt shall be issued by the court or any officer thereof in respect of revenue stamps required to be affixed under these rules.
10. Duty of officers
The proper officer of the court, whose duty it is to receive any document requiring to be stamped hereunder, shall ensure that each and every such document is sufficiently and properly stamped before accepting the same.
11. Refund of value in certain cases
(1) When any document not requiring to be stamped is inadvertently stamped or when stamps to a value in excess of those laid down in the Second Schedule are inadvertently affixed or such document is not presented to or is not accepted for filing by the court, the document may, at the instance of the party by whom it was so stamped, be cancelled and substituted by one bearing the correct value of stamps.
(2) Refunds to the value of the stamps affixed to any document cancelled under the provisions of sub-rule (1) may be made by the proper officer of the court to the party responsible for the stamping thereof:
Provided that-
(i) application is made to the proper officer of the court within thirty days of the date of cancellation of such document; and
(ii) the application is accompanied by the cancelled document which shall be attached by the proper officer of the court to the voucher in support of the refund and shall thenceforth be the property of the Government.
[Am by SI 63 of 1964.]
12. Witnesses' and assessors' allowances and expenses
Allowances and expenses of witnesses and assessors shall be as set forth in the Third Schedule.
13. Scale of costs
Except as otherwise provided by these rules, costs shall be allowed to legal practitioners and taxed in accordance with the scale of costs set forth in the Fourth Schedule.
[Am by GN 166 of 1950; 208 of 1964.]
14. Electronic documents Act No. 21 of 2009
(1) Subject to section 5 of the Electronic Communications and Transactions Act, 2009, where under these Rules any process, notice, record or other document is required to be in writing, such process or document may be in electronic or hard copy format, as applicable.
(2) Where any process, notice, record or other document is required to be served under these Rules, it may be served in electronic or hard copy format, as applicable.
[Rule 14 ins by rule 2 of SI 29 of 2012.]
ORDER II
COMPUTATION OF TIME
1. How to be made
Where, by any section of the Act, or any order or rule of court, or any special order, or the course of the court, any limited time from or after any date or event is appointed or allowed for the doing of any act or the taking of any proceeding, and such time is not limited by hours, the following rules shall apply-
Commencement of a limited time
(a) the limited time shall not include the day of the date or of the happening of the event, but shall commence at the beginning of the day next following that day;
When act to be done
(b) the act or proceeding must be done or taken at latest on the last day of the limited time;
Saturdays, Sundays and holidays
(c) when the limited time is less than six days, the following days shall not be reckoned as part of the time, namely, Saturdays, Sundays and any public holidays;
Time expiring on Saturday, Sunday or holiday
(d) when the time expires on one of those days, the act or proceedings shall be considered as done or taken in due time, if it is done or taken on the next day afterwards, not being one of those days.
[Am by SI 22 of 1964.]
2. Enlargement or abridgement of time
Parties may, by consent, enlarge or abridge any of the times fixed for taking any step, or filing any document, or giving any notice, in any suit. Where such consent cannot be obtained, either party may apply to the court for an order to effect the object sought to have been obtained with the consent of the other party, and such order may be made although the application for the order is not made until after the expiration of the time allowed or appointed.
ORDER III
MISCELLANEOUS PROVISIONS
1. Public or private sittings of court
The sittings of the court for the hearing of causes and matters shall ordinarily be public; but the court may, for reasons to be recorded in writing, hear any particular cause or matter in the presence only of the parties, with their legal advisers, if any, and the officers of the court.
2. What orders to be made
Subject to any particular rules, the court may, in all causes and matters, make any interlocutory order which it considers necessary for doing justice, whether such order has been expressly asked by the person entitled to the benefit of the order or not.
3. Consolidation of causes
Causes or matters pending in the court may, by order of the court, be consolidated, and the court shall give any directions that may be necessary as to the conduct of the consolidated actions.
4. Interpreter
If, in any cause or matter, any party, witness or other person is unable to speak or understand the English language, the court may direct a fit and proper person to attend and interpret the proceedings so far as may be necessary. Before so interpreting, such person shall swear an oath in the following form-
"I swear that I will well and truly interpret and explanation make of all such matters and things as shall be required of me to the best of my skill and understanding. So help me God."
5. Receipts
Save where any fee is required to be taken hereunder by means of adhesive revenue stamps-
(a) when any fee is payable in respect of a document, the officer of the court authorised to receive such fee shall make and initial upon the document an endorsement showing the fee paid and the number of the receipt recording the payment;
(b) the officer whose duty it is to receive any fee for any matter or thing done or performed shall, before doing or performing such matter or thing, ensure that the proper fee is paid or a sufficient sum of money provided.
ORDER IV
EMPLOYMENT OF BARRISTERS AND SOLICITORS
1. Change of practitioners during the hearing of a cause or matter
A party suing or defending by a barrister or solicitor in any cause or matter shall be at liberty to change his solicitor in such cause or matter, without an order for that purpose, upon notice of such change being filed in the office of the clerk of the court in which such cause or matter may be proceeding. But, until such notice is filed and a copy served, the former solicitor shall be considered the solicitor of the party until final judgment, unless allowed by the court, for any special reason, to cease from acting therein; but such solicitor shall not be bound, except under express agreement or unless re-engaged, to take any proceedings in relation to any appeal from such judgment.
2. Liability to pay costs
(1) When it shall appear to the court that any civil cause or matter has been commenced or carried on maliciously or without probable grounds, and the party by whom or on whose behalf such cause or matter has been so commenced or carried on has been represented therein by a barrister or solicitor who had knowledge of such malice or lack of probable grounds, or if it shall appear that any barrister or solicitor has, by any sort of deceit, induced his client to enter into or continue any litigation, every such barrister or solicitor shall, on failure of his client to pay any costs which he may be ordered to pay, be liable, if the court so orders, to pay the amount thereof to the party to whom costs are given. Such failure shall be deemed to have taken place if the client shall have refused or neglected to make payment after a demand has been made on him, although no process of execution may have been issued against him.
(2) This rule shall not be construed to restrict the liability of any barrister or solicitor in respect of the misconduct referred to in sub-rule (1) or any other misconduct for which he would otherwise be punishable or in respect of which he would otherwise be subject to any liability.
ORDER V
EVIDENCE
I - EXCLUSION OF WITNESSES
1. Ordering witnesses out of court
On the application of either party, or on its own motion, the court may order witnesses on both sides to be kept out of court; but this rule does not extend to the parties themselves or to their professional representatives, although intended to be called as witnesses.
2. Preventing communication with witnesses
The court may, during any trial, take such means as it considers necessary and proper for preventing communication with witnesses who are within the court house or its precincts awaiting examination.
II - DOCUMENTARY EVIDENCE
3. Entries in books of account
Entries in books of account, kept in the course of business with such a reasonable degree of regularity as shall be satisfactory to the court, shall be admissible in evidence whenever they refer to a matter into which the court has to inquire, but shall not alone be sufficient evidence to charge any person with liability.
4. Government Gazettes
Any Government Gazette of any British Dominion, colony or protectorate or any territory in respect of which Her Britannic Majesty has accepted a mandate may be proved by the bare production thereof before the court.
[Am by SI 63 of 1964.]
5. Proof of proclamations, etc.
All Proclamations, Acts of State, whether legislative or executive, nominations, appointments, and other official communications of the Government, appearing in any Gazette referred to in the last preceding rule, may be proved by the production of such Gazette, and shall be prima facie proof of any fact of a public nature which they were intended to notify.
6. Books of science, maps, charts, etc.
On matters of public history, literature, science or art, the court may refer, if it shall think fit, for the purposes of evidence, to such published books, maps or charts as the court shall consider to be of authority on the subject to which they relate.
7. Foreign law
Books printed or published under the authority of the government of a foreign country and purporting to contain the statutes, code or other written law of such country, and also printed and published books of reports of the decisions of the COURTS of such country, and books proved to be commonly admitted in such courts as evidence of the law of such country, shall be admissible as evidence of the law of such country.
8. Public maps
All maps made under the authority of any government or of any public municipal body, and not made for the purpose of any litigated question, shall prima facie be deemed to be correct, and shall be admitted in evidence without further proof.
9. Examined or certified copies of documents admissible in evidence
Whenever any book or other document is of such a public nature as to be admissible in evidence on its mere production from the proper custody, and no Act or statute exists which renders its contents provable by means of a copy, any copy thereof or extract therefrom shall be admissible in evidence if it purports to be signed and certified as a true copy or extract by the officer to whose custody the original is entrusted.
10. Production of documents without giving evidence
Any person, whether a party or not in a cause or matter, may be summoned to produce a document without being summoned to give evidence; and, if he cause such document to be produced in court, the court may dispense with his personal attendance.
III - AFFIDAVITS
11. Affidavits to be filed
Before an affidavit is used in the court for any purpose, the original shall be filed in the court, and the original or an office copy shall alone be recognised for any purpose in the court.
12. Not to be sworn before certain persons
An affidavit shall not be admitted which is proved to have been sworn before a person on whose behalf the same is offered, or before his solicitor, or before a partner or clerk of his solicitor.
13. Defective in form
The court may permit an affidavit to be used, notwithstanding it is defective in form according to these rules, if the court is satisfied that it has been sworn before a person duly authorised.
14. Amendment and reswearing
A defective or erroneous affidavit may be amended and re-sworn, by leave of the court, on such terms as to time, costs or otherwise as seem reasonable.
15. No extraneous matter
An affidavit shall not contain extraneous matter by way of objection or prayer or legal argument or conclusion.
16. Contents of affidavits
Every affidavit used in the court shall contain only a statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true.
17. Grounds of belief to be stated
When a witness deposes to his belief in any matter of fact, and his belief is derived from any source other than his own personal knowledge, he shall set forth explicitly the facts and circumstances forming the ground of his belief.
18. Informant to be named
When the belief of a witness is derived from information received from another person, the name of his informant shall be stated, and reasonable particulars shall be given respecting the informant, and the time, place and circumstances of the information.
19. Copies of exhibits
Where any document referred to in an affidavit and exhibited thereto is a hand-written document, other than a statement of account, book of account or extract therefrom, there shall also be exhibited therewith a typewritten or printed copy thereof certified in such affidavit to be a true and correct copy of the original.
20. Rules in taking affidavits
The following rules shall be observed by Commissioners and others before whom affidavits are taken-
(a) To be properly entitled
Every affidavit taken in a cause or matter shall be headed in the court and in the cause or matter;
(b) Description of witness
It shall state the full name, trade or profession, residence and nationality of the witness;
(c) In first person
It shall be in the first person and divided into convenient paragraphs, numbered consecutively;
(d) Erasures, etc., to be attested
Any erasure, interlineation or alteration made before the affidavit is sworn shall be attested by the Commissioner, who shall affix his signature or initials in the margin immediately opposite to the interlineation, alteration or erasure;
(e) If improperly written
Where an affidavit proposed to be sworn is illegible or difficult to read, or is, in the judgment of the Commissioner, so written as to facilitate fraudulent alteration, he may refuse to swear the witness and require the affidavit to be re-written in an unobjectionable manner;
(f) Witness to sign
The affidavit shall be signed by the witness (or, if he cannot write, marked by him with his mark) in the presence of the Commissioner;
(g) Form of jurat
The jurat shall be written, without interlineation, alteration or erasure (unless the same be initialed by the Commissioner), immediately at the foot of the affidavit, and towards the left side of the paper, and shall be signed by the Commissioner.
Date and place- It shall state the date of the swearing and the place where it is sworn.
In presence of Commissioner- It shall state that the affidavit was sworn before the Commissioner or other officer taking the same.
Illiterate or blind witness- Where the witness is illiterate or blind, it shall state the fact, and that the affidavit was read over (or translated into his own language in the case of a witness not having sufficient knowledge of English), and that the witness appeared to understand it.
Marksmen:
Where the witness makes a mark instead of signing, the jurat shall state that fact, and that the mark was made in the presence of the Commissioner.
Joint affidavit:
Where two or more persons join in making an affidavit, their several names shall be written in the jurat, and it shall appear by the jurat that each of them has been sworn to the truth of the several matters stated by him in the affidavit;
(h) If affidavit altered, to be re-sworn
The Commissioner shall not allow an affidavit, when sworn, to be altered in any manner without being re-sworn;
(i) New jurat
If the jurat has been added and signed, the Commissioner shall add a new jurat on the affidavit being re-sworn; and, in the new jurat, he shall mention the alteration;
(j) New affidavit
The Commissioner may refuse to allow the affidavit to be re-sworn, and may require a fresh affidavit;
(k) Declarations without oath
The Commissioner may take, without oath, the declaration of any person affirming that the taking of any oath whatsoever is, according to his religious belief, unlawful, or who, by reason of immature age or want of religious belief, ought not, in the opinion of the Commissioner, to be admitted to make a sworn statement. The Commissioner shall record in the attestation the reason of such declaration being taken without oath;
(l) Certificate on exhibit
Every certificate on an exhibit referred to in an affidavit signed by the Commissioner before whom the affidavit is sworn shall be marked with the short title of the cause or matter.
[Am by GN 135 of 1959.]
IV - OBJECTIONS TO EVIDENCE
21. When to be made
In every cause or matter, and at every stage thereof, any objection to the reception of evidence by a party affected thereby shall be made at the time the evidence is offered:
Provided that an appellate court may, in its discretion, entertain any objection to evidence received in the court below, though not objected to at the time it was offered.
22. Where question objected to
Where a question proposed to be put to a witness is objected to, the court, unless the objection appears frivolous, shall, if required by either party, take note of the question and objection, and mention on the notes whether the question was allowed to be put or not and, if put, the answer to it.
23. Marking of rejected documents
Where a document is produced and tendered in evidence and rejected by the court, the document shall be marked as having been so tendered and rejected.
V - TAKING OF EVIDENCE
24. Evidence of witnesses, how taken
In the absence of any agreement between the parties, and subject to these rules, the witnesses at the trial of any suit shall be examined viva voce and in open court; but the court may, at any time, receive evidence of a witness by audio-visual technology from a source within or outside Zambia, or, order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing or trial, on such conditions as the court may think reasonable, or that any witness whose attendance in the court ought, for some sufficient cause, to be dispensed with be examined by interrogatories or otherwise before an officer of the court or other person:
Provided that, where it appears to the court that the other party bona fide desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorising the evidence of such witness to be given by affidavit.
[Rule 24 am by rule 3 of SI 29 of 2012.]
25. Admission of affidavits
In any suit, the court may, in its discretion, if the interests of justice appear so to require (for reasons to be recorded in the minutes of the proceedings), admit an affidavit in evidence, although it is shown that the party against whom the affidavit is offered in evidence has had no opportunity of cross-examining the person making the affidavit.
26. Evidence on commission
The court may, in any suit where it shall appear necessary for the purpose of justice, make any order for the examination, before any officer of the court or other person, and at any place, of any witness or person, and may order any deposition so taken to be filed in the court, and may empower any party to any such suit to give such deposition in evidence therein on such terms, if any, as the court may direct.
27. How to be taken
Evidence on commission, when not directed to be taken upon interrogatories previously settled, shall be taken, as nearly as may be, as evidence at the hearing of a suit, and then the notes of the evidence shall be read over to the witness and be signed by him. If the witness refuses to sign the notes of evidence, the officer of the court or other person shall add a note of his refusal, and the statement may be used as if he had signed it.
28. Evidence before suit instituted
Evidence may be taken in like manner, on the application of any person, before suit instituted, where it is shown to the satisfaction of the court on oath that the person applying has good reason to apprehend that a suit will be instituted against him in the court, and that some person within the jurisdiction at the time of the application can give material evidence respecting the subject of the apprehended suit, but that he is about to leave the jurisdiction, or that, from some other cause, the person applying will lose the benefit of his evidence if it be not at once taken; and the evidence so taken may be used at the hearing, subject to just exceptions:
Provided always that the court may impose any terms or conditions with reference to the examination of such witness, and the admission of his evidence, as to the court may seem reasonable.
29. Facilities for proving deed, etc.
Any party desiring to give in evidence any deed or other instrument which shows upon the face of it that it has been duly executed may deliver to the opposite party, not less than four clear days before the return date, a notice in writing specifying the date and nature of and the parties to such deed or instrument, and requiring the opposite party to admit that the same was executed as it purports to have been, saving all just exceptions as to its admissibility, validity and contents; and if, at or before the hearing of the suit, the party so notified shall neglect or refuse to give such admission, the court may adjourn the hearing in order to enable the party tendering such deed or instrument to obtain proof of the due execution thereof, and, upon production of such proof, the court may order the costs of such proof to be paid by the party so neglecting or refusing, whether he be the successful party or not.
ORDER VI
FORM AND COMMENCEMENT OF SUIT
1. Commencement by writ of summons
Except where otherwise by law provided, every suit shall be commenced by writ of summons issued by the clerk of the court.
2. Preparation of writ of summons
(1) The writ shall be prepared by the plaintiff or his legal represnentative save that where the plaintiff is-
(a) illiterate or for some other good reason unable to prepare the writ himself; and
(b) unable from lack of means or other good cause to instruct a legal representative;
the clerk of the court or the Magistrate or any District Secretary or Assistant District Secretary may prepare the writ on payment by the plaintiff of the prescribed fee.
(2) The writ shall be signed by the plaintiff or by his legal representative as such:
Provided that, if the plaintiff be unable to sign his name, it shall be sufficient if he shall affix his mark to the writ in the presence of the Magistrate or the clerk of the court who shall thereupon certify the said mark as being that of the plaintiff made in his presence.
[Am by GN 445 of 1964.]
3. Form and context of writ of summons
(1) Every writ of summons shall be in such one of the prescribed forms in the First Schedule or forms to the like effect as may be applicable to the case with such variations as circumstances may require.
(2) Every writ shall contain the full name, postal and electronic mail address, if any and place of abode of the plaintiff and the name and address of his legal representative, if any, the full name, postal and electronic mail address, if any and place of abode of the defendant so far as these be known to the plaintiff, and the nature of the plaintiff's claim, particulars of which shall be set out as nearly as may be in accordance with the provisions of order IX; and if either the plaintiff or the defendant be a married woman, that fact shall be stated in the writ.[First Schedule, Form 2 or 3]
[Rule 3 am by GN 155 of 1968, rule 4(a) of SI 29 of 2012.]
4. Affidavit
(1) When the claim is in respect of a debt or liquidated demand, the plaintiff may file a default writ of summons in the prescribed form, or a form to the like effect, and at the time of the filing of such default writ of summons shall file an affidavit verifying such debt or demand and thereupon such affidavit shall, for the purpose of service upon the defendant, be treated in all ways as part of such default writ of summons. [First Schedule, Form 3]
(2) There shall be attached to every default writ of summons a form of Admission Defence and counter-claim in the prescribed form and such form shall for the purposes of service upon the defendant be treated in all ways as part of such default writ of summons. [First Schedule, Form 5]
5. Issue of writ of summons
(1) Every writ shall be issued by the clerk of the court who shall sign the same and endorse thereon the date of issue and cause to be entered on the Register both an electronic and hard copy of the writ.
[Rule 5(1) am by rule 4(b)(i) of SI 29 of 2012.]
(2) Except in the case of a default writ of summons the magistrate, allocated the case shall, before the writ is issued, endorse thereon the place of hearing, the time of hearing and the date of hearing (hereinafter called the "return day").
[Rule 5(2) am by GN 155 of 1968; rule 4(b)(ii) of SI 29 of 2012.]
6. Return day
(1) The return day fixed by the magistrate shall be such as to permit personal or electronic service being effected on the defendant and as to permit further the defendant having a reasonable time within which to comply with the provisions of these Rules in the event of the defendant wishing to defend the suit.
[Rule 6(1) subs by rule 4(c)(i) of SI 29 of 2012.]
(2) First Schedule, Form 9
The clerk of the court shall inform the plaintiff in writing or by electronic means, of the date of the return day: [First Schedule, Form 9]
Provided that it shall be deemed to be sufficient compliance with this requirement if he shall endorse the return day on any copy of the writ retained by the plaintiff and shall initial the same.
[Rule 6(2) am by rule 4(c)(ii) of SI 29 of 2012.]
7. Alteration of return day
(1) Where the court messenger shall have in his custody any writ of summons of which he is required to effect personal service and shall fail to effect service not less than five clear days before the return day, he shall forthwith return the writ to the clerk of the court who shall, subject to any directions by the Magistrate in this behalf, fix another return day and endorse the same on the writ. [O.6, 7]
(2) Where in pursuance of this rule the clerk of the court shall fix another return day, he shall forthwith inform the plaintiff or his legal representative of the same in writing and of the reasons therefor so far as the same be known to him and shall forthwith take such steps as he may consider fit to have the writ served. [First Schedule, Form 10]
(3) If the writ be not served not less than five clear days before the new return day, the court messenger in whose custody it is shall again return it to the clerk of the court who shall fix yet another return day and endorse the same on the writ and this shall be done from time to time, so often as may be necessary, until service be effected not less than five clear days before the last fixed return day:
Provided that on every occasion on which he shall alter the return day, the clerk of the court shall so inform the plaintiff or his legal representative in writing.
[Am by GN 155 of 1968.]
8. Division of causes of action
It shall not be lawful for any plaintiff to divide any cause of action for the purpose of bringing two or more actions, but any plaintiff having a cause of action in excess of the amount for which an action might be brought in any court may abandon the excess and, on proving his case, recover such amount; and the judgment of the court in respect of that amount shall be in full discharge of all demands in respect of such cause of action, and entry of the judgment shall be made accordingly.
ORDER VII
SERVICE OF PROCESS
1. Service may be effected by any person
(1) Personal service of a petition, notice, summons, order or other document of which service is required may be made by any person.
(2) Any person serving any document shall, on the request of the party served, explain to such party the contents of such document. Document to be explained
2. When proof shall be oral or by affidavit [O.7 First Schedule, Form 11]
Except where service is effected by a court messenger, proof of service shall be oral or by affidavit, and the court, if not satisfied that service has been properly effected, may direct that it be effected by a court messenger before proceeding further with the hearing of the cause or matter:
Provided that, where it shall have been ordered that service be by registered post, such service shall, in the absence of anything to the contrary, be deemed to have been effected on production to the court of a certificate purporting to be under the hand of the defendant and obtained in terms of the regulations made under the Postal Services Act that the letter containing the document has been received by him.
3. Service to be personal
Unless, in any case, the court thinks it just and expedient otherwise to direct, service shall be personal; that is, the document to be served shall be delivered to the person to be served himself.
4. Original need not be shown
Service shall be completely effected by the delivery of a duplicate or attested copy of any document, without the exhibition of any original:
Provided that the person serving any document shall, if so required by the person to be served, exhibit to him the original of the document in question.
5. Service other than personal
Where it appears to the court (either after or without an attempt at personal service) that, for any reason, personal service cannot be conveniently effected, the court may order that service be effected either-
(a) delivery to inmate
by delivery of the document to some adult inmate at the usual or last known place of abode or business of the person to be served; or
(b) to agent
by delivery thereof to some person being an agent of the person to be served, or to some other person, on it being proved that there is reasonable probability that the document will, through that agent or other person, come to the knowledge of the person to be served; or
(c) by advertisement
by advertisement in the Gazette, or in some newspaper circulating within the jurisdiction of the court; or
(d) by notice
by notice up at the court house, or some other place of public resort, of the province or district wherein the proceeding in respect of which the service is to be made is instituted, or at the usual or last known place of abode or of business of the person to be served; or
(e) by placing the document in an envelope and addressing and posting the same by prepaid registered post to the party to be served at his usual place of abode or of business.
6. Varying order of service
An order for service may be varied from time to time with respect to the mode of service directed by the order.
7. Dies non
Service of any process shall not be made on a Sunday, Good Friday or Christmas Day.
8. Service on Government officers [O.7]
When the party to be served is in the service of the Government, the clerk of the court may transmit the document to be served to the head officer of the department in which such party is employed, for the purpose of being served on him, if it shall appear to the court that it may be most conveniently so served, and such head officer shall cause the same to be served on the proper party accordingly, and the person effecting such service shall be deemed to be a court messenger for the purposes of these rules.
9. On partners
(1) Where partners are sued in the name of their firm, the writ or other document shall be served either upon any one or more of the partners, or at the principal place of business of the partnership upon any person having, at the time of service, the control or management of the partnership business there; and such service shall be deemed good service upon the firm.
(2) Where a writ is issued against a firm, every person upon whom it is served shall be informed by notice in writing given at the time of such service whether he is served as a partner or as a person having the control or management of the partnership business, or in both characters. In default of such notice, the person served shall be deemed to be served as a partner.
10. On prisoner
Where the person on whom service is to be effected is a prisoner in a prison, it shall be sufficient service to deliver the writ or document at the prison to the gaoler or person appearing to be the head officer in charge thereof, who shall cause the same to be served on such prisoner.
11. On person in asylum or prison
Where the person on whom service is to be effected is employed and dwells in any lunatic or other public asylum or in any prison, it shall be sufficient service to deliver the writ or document to the gatekeeper or lodgekeeper of such asylum or prison, who shall cause the same to be served on such person.
12. Where defendant resides out of but carries on business within Zambia
Where the suit is against a defendant residing out of but carrying on business within Zambia in his own name, or under the name of a firm, through an authorised agent, and such suit is limited to a cause of action which arose within the jurisdiction of the court, the writ or document may be served by giving it to such agent, and such service shall be equivalent to personal service on the defendant.
13. When court may direct service out of Zambia [O.7]
Service out of Zambia may be allowed by the court whenever the whole or any part of the subject-matter of the suit is land or stock or other property situate within its jurisdiction, or any act, deed or thing affecting such land, stock or property; and whenever the contract which is sought to be enforced or rescinded, dissolved, annulled or otherwise affected in any such suit, or for the breach whereof damages or other relief are or is demanded in such suit, was made or entered into within its jurisdiction; and whenever there has been a breach within its jurisdiction of any contract, wherever made; and whenever any act or thing sought to be restrained or removed, or for which damages are sought to be recovered, was or is to be done or is situate within its jurisdiction.
14. Application for leave to serve out of Zambia
Every application for an order for leave to serve a writ or document on a defendant out of Zambia shall be supported by evidence, by affidavit or otherwise, showing in what place or country such defendant is or probably may be found, and the grounds upon which the application is made.
15. Order to prescribe mode of service
Any order giving leave for service out of Zambia shall prescribe the mode of service and the date of hearing, and the court may receive an affidavit of such service having been effected as prima facie evidence thereof.
16. Service in another district
Where a writ or other document is required to be served in a district in which the court has no jurisdiction, the clerk of the court from whose office the writ or other document is issued shall, unless the Magistrate sees fit to direct otherwise, transmit the same and a copy thereof together with any other documents annexed thereto and copies thereof, to the clerk of the court having jurisdiction in the district in question for service.
17. Where violence threatened
Where the officer of court or person charged with the service of any writ or document on any person is prevented by the violence or threats of such person, or any other person in concert with him, from personally serving the writ or document, it shall be sufficient to inform the person to be served of the nature of the writ or document, and to leave the writ or document as near such person as is practicable.
17A. Electronic service of documents
(1) Where a document referred to in order 1 is filed electronically, the service of such document by electronic means shall be deemed to be personal service.
(2) Where a document is served electronically, the transmission shall contain a notice, in writing, explaining the contents of such document.
(3) Where a document has been served electronically---
(a) the document shall be deemed to have been received when it arrives at the server for incoming communications in connection with which the user identification or signature of the person to be served is associated; and
(b) the burden of disproving the service shall lie with the served party.
[Rule 17A ins by rule 5 of SI 29 of 2012.]
18. Certificate of service
In all cases where service of any writ or document shall have been effected by a court messenger, a certificate of service signed by such officer shall, on production, without proof of signature, be prima facie evidence of service.
19. Returns of service [First Schedule, Form 12]
In all cases the bailiff or other officer of court charged with the service of any particular process shall, not later than fourteen days after the receipt of the process, render a return in the prescribed form to the court in duplicate and the duplicate thereof shall thereupon be despatched by the clerk of the court to the party requiring the same to be served, or his solicitors, specifying whether the same has been served and, if not, giving reasons why the same has not been so served.
ORDER VIII
PARTIES
1. Suit on behalf of others
If any plaintiff sues, or any defendant is sued, in any representative capacity, it shall be expressed on the writ. The court may order any of the persons represented to be made parties either in lieu of or in addition to the previously existing parties.
2. Joint ground of suit
Where a person has jointly with other persons an alleged ground for instituting a suit, all those other persons ought ordinarily to be made parties to the suit.
3. Where joint interest, parties may be authorised to sue or defend for others
Where more persons than one have the same interest in one suit, one or more of such persons may be authorised to sue or to defend in such suit for the benefit of or on behalf of all parties so interested.
4. Joint and several demand
Where a person has a joint and several demand against two or more persons, either as principals or sureties, it is not necessary for him to bring before the court as parties to a suit concerning that demand all the persons liable thereto, and he may proceed against any one or more of the persons severally or jointly and severally liable. Where a defendant claims contribution, indemnity or other remedy or relief over against any other person, he may apply to have such person made a party to the suit.
5. Non-joinder
(1) If it shall appear to the court, at or before the hearing of a suit, that all the persons who may be entitled to, or who claim some share or interest in, the subject-matter of the suit, or who may be likely to be affected by the result, have not been made parties, the court may adjourn the hearing of the suit to a future day, to be fixed by the court, and direct that such persons shall be made either plaintiffs or defendants in the suit, as the case may be. In such case, the court shall issue a notice to such persons, which shall be served in the manner provided by these Rules for the service of a writ of summons, or in such manner as the court thinks fit to direct; and, on proof of the due service of such notice, the person so served, whether he shall have appeared or not, shall be bound by all proceedings in the cause:
Provided that a person so served, and failing to appear within the time limited by the notice for his appearance, may, at any time before judgment in the suit, apply to the court for leave to appear, and such leave may be given upon such terms (if any) as the court shall think fit.
(2) Misjoinder
The court may, at any stage of the proceedings, and on such terms as appear to the court to be just, order that the name or names of any party or parties, whether as plaintiffs or as defendants, improperly joined be struck out.
(3) No suit shall be defeated by reason of non-joinder or misjoinder of parties. [O.8, 9]
6. Claims by the Government
Claims by the Government against any person may be brought by the Attorney-General or by any officer authorised by law to prosecute such claims on behalf of the Government, as the case may be.
7. Proceeding by or against partners
Any persons claiming or being liable as co-partners may sue or be sued in the name of their respective firms (if any); and any party to an action may, in such case, apply to the court for a statement of the names of the persons who are co-partners in any such firm, to be furnished in such manner and verified on oath or otherwise as the court may direct.
8. Distinct causes of action in one writ
In case a writ states two or more distinct causes of action by and against the same parties, and in the same rights, the court may, either before or at the hearing, if it appears inexpedient to try the different causes of action together, order that the trials be had separately, and make such order as to adjournment and costs as justice requires.
9. Misjoinder of actions
In case a writ states two or more distinct causes of action, but not by and against the same parties, or by and against the same parties but not in the same rights, the writ may, on the application of any defendant, be amended or dismissed, as justice may require.
ORDER IX
PARTICULARS OF CLAIM
1. Particulars
The particulars of claim to be entered on or attached to the writ of summons shall set out the nature and extent of the relief asked for and shall be such as to give the defendant reasonably sufficient information as to the details of the claim, and the amount claimed for costs and court fees shall be shown on the writ.
2. Abandonment or set-off
Where part of the claim has been abandoned in accordance with order VI, rule 8, or where a set-off is admitted by the plaintiff, the particulars of claim shall show such abandonment or set-off as the case may be.
3. More than one claim
Where more than one claim is contained in the same writ of summons, the particulars of each claim or the relief sought in respect thereof shall be shown separately.
4. Assignee
Where the plaintiff sues as an assignee, the particulars shall show the date of the assignment and the name and description of the assignor.
5. Instrument required to be presented [O.9, 10]
Where the plaintiff sues upon an instrument which is required by law to have been presented before it can be sued upon, the particulars shall state that it was in fact presented and upon what date it was so presented.
6. Further and better particulars
The court may, on the application of the defendant or on its own motion, order further and better particulars.
7. Amendment of particulars
Particulars of claim shall not be amended except by leave of the court, but the court may, on any application for leave to amend, grant the same, on it appearing that the defendant will not be prejudiced by the amendment. Otherwise, the court may refuse leave or grant the same, on such terms as to notice, adjournment or costs as justice requires.
8. Amount of judgment not to exceed claim
The plaintiff shall not, at the hearing, obtain a judgment for any sum exceeding that stated in the particulars except for subsequent interest and for costs.
9. Amendment at hearing
Any variance between the items contained in the particulars and the items proved at the hearing may be amended at the hearing, either at once or on such terms as to notice, adjournment or costs as justice requires.
ORDER X
GUARDIAN FOR PURPOSES OF SUIT
1. Court may appoint guardians to infant defendants and persons of weak mind
Where, on default of a defendant in answering or otherwise defending the suit, after service of the writ, it appears to the court that he is an infant, or a person of weak or unsound mind, so that he is unable by himself to defend the suit, the court may, if it thinks fit, on the application of the plaintiff or of its own motion, appoint, by order, some fit person to be guardian of the defendant for the purposes of the suit by whom he may defend it.
2. Notice and service thereof
Before such an order is made, the court shall cause such notice as it thinks reasonable to be served on or left at the dwelling-house of the person with whom or under whose care the defendant is, and also, unless the court sees good reason to the contrary, in the case of an infant not residing with or under the care of his guardian, to be served on or left at the dwelling-house of his guardian.
3. Suits by infants and persons of weak mind
Infants or persons of weak or unsound mind may sue as plaintiffs by their committees or next friends on such terms as to the liability for costs and otherwise of such committees or next friends as the court shall consider just.
ORDER XI
ALTERATION OF PARTIES
1. Where change of interest, court may make order enabling suit to proceed
Where, after the institution of a suit, any change or transmission of interest or liability occurs in relation to any party to the suit, or any party to the suit dies or becomes incapable of carrying on the suit, or the suit in any other way becomes defective or incapable of being carried on, any person interested may obtain from the court any order requisite for curing the defect, or enabling or compelling proper parties to carry on the proceedings:
Provided that any person served with such an order may, within such time as the court in the order directs, apply to the court to discharge or vary the order.
2. Death of party not to abate suit, if cause of action survive
The death of a plaintiff or defendant shall not cause the suit to abate if the cause of action survive.
3. Cause of action surviving to surviving plaintiff or plaintiffs
If there be two or more plaintiffs or defendants, and one of them die, and if the cause of action survive to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, and against the surviving defendant or defendants.
4. Cause of action surviving to surviving plaintiff and legal representative of decreased plaintiff
If there be two or more plaintiffs and one of them die, and if the cause of action shall not survive to the surviving plaintiff or plaintiffs alone, but shall survive to them and the legal representative of the deceased plaintiff jointly, the court may, on the application of the legal representative of the deceased plaintiff, enter the name of such representative in the suit in the place of such deceased plaintiff, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, and such legal representative of the deceased plaintiff. If no application shall be made to the court by any person claiming to be the legal representative of the deceased plaintiff, the suit shall proceed at the instance of the surviving plaintiff or plaintiffs; and the legal representative of the deceased plaintiff shall, after notice to appear, be interested in, and shall be bound by, the judgment given in the suit in the same manner as if the suit had proceeded at his instance conjointly with the surviving plaintiff or plaintiffs, unless the court shall see cause to direct otherwise.
5. Death of sole or surviving plaintiff [O, 11, 12]
In case of the death of a sole plaintiff, or sole surviving plaintiff, the court may, on the application of the legal representative of such plaintiff, enter the name of such representative in the place of such plaintiff in the suit, and the suit shall thereupon proceed; if no such application shall be made to the court within what it may consider a reasonable time by any person claiming to be the legal representative of the deceased sole plaintiff or sole surviving plaintiff, it shall be competent to the court to make an order that the suit shall abate, and to award to the defendant the reasonable costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased sole plaintiff or surviving plaintiff; or the court may, if it thinks proper, on the application of the defendant, and upon such terms as to costs as may seem fit, make such order for bringing in the legal representative of the deceased sole plaintiff or surviving plaintiff, and for proceeding with the suit in order to reach a final determination of the matters in dispute, as may appear just and proper in the circumstances of the case.
6. Dispute as to legal representative
If any dispute arise as to who is the legal representative of a deceased plaintiff, it shall be competent to the court either to stay the suit until the fact has been duly determined in another suit, or to decide, before the hearing of the suit, who shall be admitted to be such legal representative for the purpose of prosecuting the suit.
7. Death of one of several defendants or of a sole surviving defendant
If there be two or more defendants, and one of them die, and the cause of action shall not survive against the surviving defendant or defendants alone, and also in case of the death of a sole defendant or sole surviving defendant, where the action survives, the plaintiff may make an application to the court specifying the name, description and place of abode of any person whom the plaintiff alleges to be the legal representative of such defendant, and whom he desires to be made the defendant in his stead; and the court shall thereupon enter the name of such representative in the suit in the place of such defendant, and shall issue an order to him to appear on a day to be therein mentioned to defend the suit; and the case shall thereupon proceed in the same manner as if such representative had originally been made a defendant and had been a party to the former proceedings in the suit.
8. Bankruptcy of plaintiff
The bankruptcy of the plaintiff, in any suit which the assignee or trustee might maintain for the benefit of the creditors, shall not be a valid objection to the continuance of such suit, unless the assignee or trustee shall decline to continue the suit and to give security for the costs thereof, within such reasonable time as the court may order; if the assignee or trustee neglect or refuse to continue the suit and to give such security within the time limited by the order, the defendant may, within eight days after such neglect or refusal, plead the bankruptcy of the plaintiff as a reason for abating the suit.
ORDER XII
THIRD PARTY PROCEDURE
1. Third-party notice
(1) Where a defendant claims as against any person not already a party to the suit (in this order called the third party)-
(a) that he is entitled to contribution or indemnity; or
(b) that he is entitled to any relief or remedy relating to or connected with the original subject-matter of the suit and substantially the same as some relief or remedy claimed by the plaintiff; or [O.12]
(c) that any question or issue relating to or connected with the said subject-matter is substantially the same as some question or issue arising between the plaintiff and the defendant, and should properly be determined not only as between the plaintiff and the defendant but as between the plaintiff and the defendant and the third party or between any or either of them;
the defendant may on the return day apply to the court on notice for leave to issue and serve a "third-party notice" and shall file a copy of the third-party notice with the application.
(2) Notice of the application shall be served on the plaintiff and filed with the clerk of the court at any time before the time of hearing on the return day as shown on the writ of summons.
(3) The application shall be heard on the return day and on the hearing thereof the court may grant or refuse leave. If leave be granted the court shall give directions as to the time for service of the third-party notice and shall fix another return day on which the third party shall be required to appear.
(4) The notice shall be in the prescribed form and shall state the nature and grounds of the claim or the nature of the question or issue sought to be determined, the nature and extent of any relief or remedy claimed and the return day fixed by the court. [First Schedule, Form 66]
(5) The notice shall be served on the third party personally, and shall be accompanied by a copy of the summons in the action and of the particulars annexed thereto.
(6) Where leave shall have been granted in accordance with this rule to issue and serve a third- party notice, the third party shall, in all respects, save as hereinafter in this order provided, be deemed to be a defendant to the suit and the third-party notice with copy of writ and particulars annexed, save as hereinafter in this order provided, be deemed in regard to the third party to be the writ of summons in the suit.
2. Default by third party
(1) If the third party disputes the plaintiff's claim as against the defendant by whom the notice has been given or his own liability to the defendant, he shall do such things as are directed by these Rules to be done by a defendant who disputes the plaintiff's claim in any writ of summons served upon him.
(2) If the third party does not appear on the return day, he shall be deemed to admit the validity of and be bound by any judgment given in the suit, whether by consent or otherwise, and by any decision therein on any question specified in the notice, and when contribution or indemnity or some other relief or remedy is claimed against him in the notice, he shall be deemed to admit his liability in respect of such contribution or indemnity or other relief or remedy. [ O.12]
(3) If a third party does not appear on the return day and the defendant by whom the notice has been given suffers judgment by default, such defendant shall be entitled, at any time after satisfaction of the judgment against him, or before such satisfaction by leave of the court, to have judgment entered against the third party to the extent of any contribution or indemnity claimed in the third-party notice or by leave of the court have such judgment entered in respect of any other relief or remedy claimed as the court shall direct:
Provided that it shall be lawful for the court to set aside or vary such judgment against the third party upon such terms as it thinks just.
3. Conduct of trial
(1) Subject to any directions which may have been given by the court before the hearing, the court shall have full power at the hearing to direct what part the third party shall take in the hearing and generally how the trial shall be conducted.
(2) As between the defendant by whom the third-party notice has been given and the third party, the court may grant to either party any relief or remedy which might properly have been granted if the claim against the third party had been made in a separate suit and may give such judgment for either party against the other as may be just:
Provided that execution against the third party shall not be issued without leave of the court until the defendant has satisfied the judgment in the same suit against him.
4. Fourth and subsequent parties
(1) Where a third party makes as against any person not already a third party to the suit such a claim as is defined in sub-rule (1) of rule 1, the provisions of this order regulating the rights and procedure as between the defendant and the third party shall apply as between the third party and such other person, and "third-party notice" and "third party" shall apply to and include every notice issued against a fourth or subsequent party and every fourth or subsequent party served with such a notice respectively.
(2) Where a person served with a notice under this rule by a third party in turn makes such a claim as is defined in sub-rule (1) of rule 1 against another person not already a party to the suit, this order as applied by this rule shall have effect as regards such further person and any other further person or persons so served and so on successively.
5. Co-defendants [O.12, 13, 14 ]
Where a defendant makes against any other defendant in the same suit such a claim as is defined in sub-rule (1) of rule 1, he may without any leave issue and serve on such other defendant a notice making such claim, and the same procedure shall be adopted for the determination of the claim as would be appropriate under this order if such other defendant were a third party:
Provided that nothing herein contained shall prejudice the rights of the plaintiff against any defendant.
6. Counter-claim
In this order, "plaintiff" and "defendant" respectively shall include a plaintiff and a defendant to a counter-claim.
ORDER XIII
DISCONTINUANCE OF SUITS
1. Discontinuance of suit
If, before the date fixed for the hearing, the plaintiff desires to discontinue any suit against all or any of the defendants, or to withdraw any part of his alleged claim, he shall give notice in writing of discontinuance or withdrawal to the clerk of the court and to every defendant as to whom he desires to discontinue or withdraw. After the receipt of such notice, such defendant shall not be entitled to any further costs, with respect to the matter so discontinued or withdrawn, than those incurred up to the receipt of such notice unless the court shall otherwise order; and such defendant may apply ex parte for an order against the plaintiff for the costs incurred before the receipt of such notice and of attending the court to obtain the order. Such discontinuance or withdrawal shall not be a defence to any subsequent suit. If, in any other case, the plaintiff desires to discontinue any suit or to withdraw any part of his alleged claim, or if a defendant desires to discontinue or withdraw his counter-claim or any part thereof, such discontinuance or withdrawal may, in the discretion of the court, be allowed on such terms as to costs and as to any subsequent suit and otherwise as to the court may seem just.
2. Stay of subsequent suit
If any subsequent suit shall be brought before payment of the costs of a discontinued suit, for the same or substantially the same cause of action, the court may order a stay of such subsequent suit until such costs shall have been paid.
ORDER XIV
PLACE OF TRIAL AND INSTITUTION OF SUITS
1. Place of trial, etc.
Subject to the law respecting transference, the place for the trial of any suit or matter shall be regulated as follows-
(a) Suits upon contract [O.14, 15]
All suits arising out of the breach of any contract may be commenced and determined in any court having jurisdiction in the district in which such contract ought to have been performed, or in which the defendant resides or carries on business;
(b) Other suits
All other suits may be commenced and determined in any court having jurisdiction in any district in which the defendant resides or carries on business. If there are more defendants than one, resident in different districts, the suit may be commenced in any court having jurisdiction in any one of such districts; subject, however, to any order which the court may, upon the application of any of the parties, or on its own motion, think fit to make with a view to the most convenient arrangement for the trial of such suit;
(c) Suits commenced in wrong district
In case any suit shall be commenced in any other court than that in which it ought to have been commenced, the same may, notwithstanding, be tried in the court in which it shall have been so commenced, unless the court shall otherwise direct, or the defendant shall plead specially in objection to the jurisdiction before or at the time when he is required to state his answer to or to plead to such suit;
(d) Order by Judge
No proceedings which may have been taken previously to such plea in objection shall be in any way affected thereby; but a Judge of the High Court may order that the suit be transferred to the court to which it may be proved to belong, or, failing such proof, that it be retained and proceed in the court in which it has been commenced.
ORDER XV
AMENDMENT
1. Under what circumstances
The court may, at any stage of the proceedings, either of its own motion or on the application of either party, order any proceedings to be amended, whether the defect or error be that of the party applying to amend or not; and all such amendments as may be necessary or proper for the purpose of eliminating all statements which may tend to prejudice, embarrass or delay the fair trial of the suit, and for the purpose of determining, in the existing suit, the real question or questions in controversy between the parties, shall be so made. Every such order shall be made upon such terms as to costs or otherwise as shall seem just.
ORDER XVI
ADMISSIONS
1. Notice of admissions
Any party to a suit may give notice, by his own statement or otherwise, that he admits the truth of the whole or any part of the case stated or referred to in the writ of summons, statement of claim, defence or other statement of any other party.
2. Notice to admit
Any party may call upon any other party to admit, saving just exceptions, any document or fact. [First Schedule, Forms 15 and 16]
3. Costs on refusal to make reasonable admissions
In case of refusal or neglect to admit after notice, the costs of proof of the document or fact shall be paid by the party refusing or neglecting to admit, whatever be the result of the suit, unless the court is of opinion that the refusal or neglect to admit was reasonable.
4. Judgment by consent
If the plaintiff and defendant shall agree as to the terms and conditions on which judgment shall be entered, the court, unless it sees good reason to the contrary, shall enter judgment on such terms and conditions.
ORDER XVII
SETTLEMENT OF ISSUES
1. At or before hearing
At any time before or at the hearing, the court may, if it thinks fit, on the application of any party or of its own motion, proceed to ascertain and determine what are the material questions in controversy between the parties, and may reduce such questions into writing and settle them in the form of issues, which issues, when settled, may state questions of law on admitted facts, or questions of disputed facts, or questions partly of the one kind and partly of the other.
2. Court may direct parties to prepare issues
The court may, if it thinks fit, direct the parties to prepare issues, and the same shall be settled by the court.
3. When to be settled
The issues may be settled, without any previous notice, at any stage of the proceedings at which all the parties are actually present, or at the hearing. If otherwise, notice shall be given to the parties to attend at the settlement of the issues.
4. The court may amend or frame additional issues
At any time before the decision of the case, if it shall appear to the court necessary for the purpose of determining the real question or controversy between the parties, the court may amend the issues or frame additional issues, on such terms as to it shall seem fit.
ORDER XVIII
PLEADINGS
1. Written statements; in what cases
Suit shall ordinarily be heard and determined in a summary manner without pleadings; but, where it appears to the court (for reasons recorded in the minutes) that the nature and circumstances of any case render it expedient in the interests of justice to do so, the court may order the plaintiff to file a written statement of his claim, and may likewise order the defendant to file a written statement of his defence. The filing of a statement of claim shall not necessitate, unless the court so directs, that a statement of defence shall also be filed. The order may be made at any stage of a suit, either before or at the hearing.
2. Illiterate parties
In making any such order, the court shall have regard to the condition of the parties, and shall not require any party to file a written statement who, from want of education, is incapable of preparing or understanding the same. If in any case the court considers it necessary in the interests of justice that any statement of such party should be reduced into writing prior to the hearing, the court may direct that the same be taken down in writing by the clerk of the court, and, after verifying the statement so prepared by oral examination of the party, where necessary, may direct, if it thinks fit, that such statement be filed as a pleading.
3. Where pleadings ordered
Whenever any pleading is ordered to be filed, the provisions of the following rules shall be observed-
(a) The pleading to state all material facts
Every pleading shall contain a statement of all the material facts on which the party pleading relies, but not the evidence by which they are to be proved, such statement being divided into paragraphs numbered consecutively, and each paragraph containing, as nearly as may be, a separate allegation;
(b) How facts to be stated
The facts shall be alleged positively, precisely and distinctly, and as briefly as is consistent with a clear statement;
(c) The relief claimed to be stated
Every statement of claim shall state specifically the relief which the plaintiff claims, either simply or in the alternative, and may also ask for general relief, and the same rule shall apply to any counter-claim made or relief claimed by the defendant in his statement of defence;
(d) Grounds of claim founded on separate facts to be separately stated
Where the plaintiff seeks relief in respect of several distinct claims or causes of complaint founded upon separate and distinct facts, they shall be stated, as far as may be separately and distinctly. And the same rule shall apply where the defendant relies upon several distinct grounds of set-off or counter-claim founded upon separate and distinct facts;
(e) Defendant's pleading to meet allegations in statement of claim
The defendant's pleadings shall deny all such material allegations in the statement of claim as the defendant intends to deny at the hearing. Every allegation of fact, if not denied specifically or by necessary implication or stated to be not admitted, shall be taken as established at the hearing;
(f) Allegations shall not be met generally but specifically
It shall not be sufficient to deny generally the facts alleged by the statement of claim, but the defendant must deal specifically therewith, either admitting or denying the truth of each allegation of fact seriatim, as the truth or falsehood of each is within his knowledge, or (as the case may be) stating that he does not know whether such allegation or allegations is or are true or otherwise;
(g) Denial of fact must answer point of substance
When a party denies an allegation of fact, he must not do so evasively, but answer the point of substance. And when a matter of fact is alleged with divers circumstances it shall not be sufficient to deny it as alleged along with those circumstances, but a fair and substantial answer must be given;
(h) Admissions: their effect
The statement of defence shall admit such material allegations in the statement of claim as the defendant knows to be true or desires to be taken as admitted, and such allegations may be taken as established without proof thereof;
(i) Allegation of new facts in defence
The statement of defence must allege any fact not stated in the statement of claim on which the defendant relies in defence, as establishing, for instance, fraud on the part of the plaintiff, or showing that the plaintiff's right to recover, or to any relief capable of being granted on the statement of claim, has not yet accrued, or is released or barred or otherwise gone;
(j) Set-off or counter claim to be pleaded
Where any defendant seeks to rely upon any facts, as supporting a right of set-off or counter-claim, he shall in his statement of defence, state specifically that he does so by way of set-off or counter-claim, and the particulars of such set-off or counter-claim shall be given;
(k) Evidence in denial of allegation or in support of defence not set up in pleading
The statement of defence of a defendant shall not debar him, at the hearing, from disproving any allegation of the plaintiff not admitted in the statement of defence, or from giving evidence in support of a defence not expressly set up in the statement of defence except where the defence is such as, in the opinion of the court, ought to have been expressly set up in the statement of defence, or is inconsistent with the statements thereof, or is, in the opinion of the court, likely to take the plaintiff by surprise and to raise new issues not fairly arising out of the pleadings as they stand and such as the plaintiff ought not to be then called upon to meet;
(l) Costs in certain cases
Where the court shall be of opinion that any allegations of fact, denied or not admitted by any pleading, ought to have been admitted, the court shall make such order as may be just with respect to costs;
(m) verification of pleadings
The court may order any plaintiff or defendant to verify his statement, or any part thereof, on oath or affidavit;
(n) Filing and service of pleadings
Every pleading shall be filed at such time as the court directs, and be served on the opposite party, if the court thinks fit, at such time and in such manner as it directs.
ORDER XIX
INQUIRIES AND ACCOUNTS
1. Questions of fact or of account may be investigated by referee
In any cause or matter in which all parties interested who are under no disability consent thereto, and also, without such consent, in any cause or matter requiring any prolonged examination of documents or accounts or any scientific or local examination which cannot, in the opinion of the court, conveniently be made by the court in the usual manner, the court may, at any time, on such terms as it may think proper, order any question or issue of fact, or any question of account arising therein, to be investigated or tried before a referee, to be agreed on between the parties or appointed by the court.
2. Instructions to referee
Where an order has been made under the last preceding rule, the court shall furnish the referee with such part of the proceedings and such information and detailed instructions as may appear necessary for his guidance, and shall direct the parties, if necessary, to attend upon the referee during the inquiry. The instructions shall specify whether the referee is merely to transmit the proceedings which he may hold on the inquiry, or also to report his own opinion on the point referred for his investigation.
3. Interim inquiries or accounts
The court may, at any stage of the proceedings, direct any necessary inquiries or accounts described in rule 1 to be made or taken, notwithstanding that it may appear that there is some special or further relief sought for or some special issue to be tried, as to which it may be proper that the cause or matter should proceed in the ordinary manner.
4. General powers of referee
The referee may, subject to the order of the court, hold the inquiry at or adjourn it to any place which he may deem most convenient, and have any inspection or view which he may deem expedient for the disposal of the controversy before him. He shall, so far as practicable, proceed with the inquiry de die in diem.
5. Evidence
Subject to any order to be made by the court ordering the inquiry, evidence shall be taken at any inquiry before a referee, and the attendance of witnesses may be enforced by subpoena; and every such inquiry shall be conducted in the same manner, as nearly as circumstances will admit, as trials before a Magistrate, but not so as to make the tribunal of the referee a public court of justice.
6. Referee's authority in the inquiry
Subject to any order as mentioned in the last preceeding rule, the referee shall have the same authority in the conduct of any inquiry as a Magistrate when presiding at any trial.
7. Referee may report questions or facts specially
The referee may, before the conclusion of any inquiry before him, or by his report under the reference, submit any question arising therein for the decision of the court, or state any facts specially.
8. Effect of report by referee
The proceedings and report in writing of the referee shall be received in evidence in the case, unless the court may have reason to be dissatisfied with them, and the court shall have power to draw such inferences from the proceedings or report as shall be just.
9. Powers of court
The court shall have power to require any explanations or reasons from the referee, and to remit the cause or matter, or any part thereof, for further inquiry or consideration to the same or any other referee, as often as may be necessary, and shall pass such ultimate judgment or order as may appear to be right and proper in the circumstances of the case.
ORDER XX
APPEARANCE OF PARTIES
1. Court may permit party to appear by proxy
In every cause or matter pending before the court, in case it shall appear to the satisfaction of the court that any plaintiff or defendant who may not be represented by barrister or solicitor is prevented by some good or sufficient cause from attending the court in person, the court may, in its discretion, permit any other person who shall satisfy the court that he has authority in that behalf to appear for such plaintiff or defendant.
2. Proceeding without authority
Any person doing any act or taking any proceeding in the name or on behalf of another person, not being lawfully authorised thereunto, and knowing himself not to be so authorised, shall be guilty of contempt of court.
ORDER XXI
ARREST OF ABSCONDING DEFENDANT
1. Issue of order on affidavit
The court may make an order for the arrest of any person in pursuance of section 10 of the Debtors Act, where proof of the matters therein mentioned shall be made by affidavit in the prescribed form-[First Schedule, Form 17.]
Provided that the court in any case, if it shall see fit, may require evidence otherwise than by affidavit.
2. Form of warrant [O.21, 22 ]
Where the court makes an order for the arrest of any person in pursuance of section 10 of the Debtors Act, it shall issue a warrant in the prescribed form. [First Schedule, Form 18.]
3. Security
(1) Subject to the limitation mentioned in section 10 of the Debtors Act, the security to be given by a person so arrested shall be in such amount as the court may consider just and may be given by deposit of money or valuable property or by way of bond to be executed by himself with or without such surety or sureties as to the court may seem fit. [First Schedule, Forms 19 and 20]
(2) Such security may be given at any time.
4. Deposit by plaintiff
It shall be lawful for a court, before issuing the warrant, to require the plaintiff to deposit in court such sum as the court may think sufficient for the costs of executing the warrant and of bringing the defendant before the court and, where necessary, of sending him in custody to the court in which the suit is depending.
5. Subsistence of person arrested
The expenses incurred for the subsistence in prison of the person so arrested shall be paid by the plaintiff in the action in advance. The court shall fix whatever allowance it shall think sufficient for such subsistence, not exceeding seventy-five ngwee per diem. The amount so disbursed may be recovered by the plaintiff as costs in the suit, unless the court shall otherwise order. The court may release the person so imprisoned on failure by the plaintiff to pay the subsistence money, or in the case of serious illness, order his removal to hospital. During the period of such person's stay in hospital, the subsistence allowance shall be paid by the plaintiff, unless the court shall see fit, in any case, to order otherwise.
[Am by GN 208 of 1964.]
ORDER XXII
INTERIM ATTACHMENT OF PROPERTY
1. In what cases
If the defendant, in any suit for an amount or value of twenty kwacha or upwards, with intent to obstruct or delay the execution of any decree that may be passed against him, is about to dispose of his property, or any part thereof, or to remove any such property from Zambia, the plaintiff may apply to the court, either at the time of the institution of the suit, or at any time thereafter until final judgment, to call upon the defendant to furnish sufficient security to fulfil any decree that may be made against him in the suit, and, on his failing to give such security, to direct that any property, movable or immovable, belonging to the defendant, shall be attached until the further order of the court.
2. Application for attachment [O.22]
The application shall contain a specification of the property required to be attached and the estimated value thereof, so far as the plaintiff can reasonably ascertain the same; and the plaintiff shall, at the time of making the application, declare that, to the best of his information and belief, the defendant is about to dispose of or remove his property with such intent as aforesaid.
3. Form of order
If the court, after making such investigation as it may consider necessary, shall be satisfied that the defendant is about to dispose of or remove his property, with intent to obstruct or delay the execution of the decree, it shall be lawful for the court to order the defendant, within a time to be fixed by the court, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the court, when required, the said property, or the value of the same, or such portion thereof as may be sufficient to fulfil the decree, or to appear and show cause why he should not furnish security. The court may also, in the order, direct the attachment, until further order, of the whole or any portion of the property specified in the application.
4. Where defendant fails to show cause or give security
If the defendant fails to show such cause, or to furnish the required security within the time fixed by the court, the court may direct that the property specified in the application, if not already attached, or such portion thereof as shall be sufficient to fulfil the decree, shall be attached until further order. If the defendant shows such cause, or furnishes the required security, and the property specified in the application, or any portion of it, shall have been attached, the court shall order the attachment to be withdrawn. [First Schedule, Form 21]
5. Rights of third parties not to be affected
The attachment shall not affect the rights of persons not parties to the suit, and, in the event of any claim being preferred to the property attached before judgment, such claim shall be investigated in the manner prescribed for the investigation of claims to property attached in execution of a decree.
6. Removal of attachment
In all cases of attachment before judgment, the court shall, at any time, remove the same on the defendant furnishing security as hereinbefore required together with security for the costs of the attachment.
7. In what courts proceedings may be taken
The application may be made to any court having jurisdiction in the district where the defendant or, in case of emergency, where the property proposed to be attached may be, and such court shall make such order as shall seem just. In case an order for the attachment of property shall be issued by a different court from that in which the suit is depending, such court shall, on the request of either of the parties, transmit the application and evidence therein to the court in which the suit is so depending, retaining the property in the meantime when attached, or taking sufficient security for its value, and the court in which the suit is depending shall thereupon examine into and proceed in the application in accordance with the foregoing provisions, in such manner as shall seem just.
ORDER XXIII
INTERIM INJUNCTIONS, ETC.
1. To stay waste, damage or alienation appointment of receiver
In any suit in which it shall be shown, to the satisfaction of the court, that any property which is in dispute in the suit is in danger of being wasted, damaged or alienated by any party to the suit, it shall be lawful for the court to issue an injunction to such party, commanding him to refrain from doing the particular act complained of, or to give such order, for the purpose of staying and preventing him from wasting, damaging or alienating the property, as to the court may seem meet, and, in all cases in which it may appear to the court to be necessary for the preservation or the better management or custody of any property which is in dispute in a suit, it shall be lawful for the court to appoint a receiver or manager of such property, and, if need be, to remove the person in whose possession or custody the property may be from the possession or custody thereof, and to commit the same to the custody of such receiver or manager, and to grant to such receiver or manager all such powers for the management or the preservation and improvement of the property, and the collection of the rents and profits thereof, and the application and disposal of such rents and profits, as to the court may seem proper.
2. Orders for sale of perishable goods
It shall be lawful for the court, on the application of any party to a suit, to make any order for the sale by any person named in such order, and in such manner and on such terms as to the court may seem desirable, of any goods, wares or merchandise, the right to which is in dispute in the suit, which may be of a perishable nature or likely to depreciate from keeping, or which, for any other just and sufficient reason, it may be desirable to have sold at once.
3. Detention and inspection of property in dispute
It shall be lawful for the court, upon the application of any party to a suit, and upon such terms as may seem just, to make any order for the detention, preservation or inspection of any property being the subject of such suit, and, for all or any of the purposes aforesaid, to authorise any person or persons to enter upon or into any land or building in the possession of any party to such suit, and, for all or any of the purposes aforesaid, to authorise any samples to be taken, or any observations to be made or experiments to be tried, which may seem necessary or expedient for the purpose of obtaining full information or evidence.
4. Orders to restrain breaches of contract or torts
In any suit for restraining the defendant from the committal of any breach of contract or other injury, and whether the same be accompanied by any claim for damage or not, it shall be lawful for the plaintiff, at any time after the commencement of the suit, and whether before or after judgment, to apply to the court for an injunction to restrain the defendant from the repetition or the continuance of the breach of contract or wrongful act complained of, or the committal of any breach of contract or injury of a like kind arising out of the same contract, or relating to the same property or right, and such injunction may be granted by the court on such terms as to the duration of the injunction, keeping an account, giving security or otherwise, as to the court shall seem reasonable and just: [O.23, 24]
Provided always that any order for an injunction may be discharged, varied or set aside by the court on application made thereto by any party dissatisfied with such order.
5. Notice of application
The court may, in every case, before granting an injunction or order as aforesaid, direct such reasonable notice of the application for the same to be given to the opposite party as it shall see fit.
ORDER XXIV
EQUITABLE RELIEF, COUNTER-CLAIM, SET-OFF
1. Equitable defence
Every suit implies an offer to do equity in the matter thereof, and admits of any equitable defence.
2. Equitable relief
The plaintiff may obtain any such equitable relief as the facts stated and proved entitle him to, though not specifically asked.
3. Counter-claim: set-off
A defendant in an action may set off, or set up by way of counter-claim against the claim of the plaintiff, any right or claim, whether such set-off or counter-claim sound in damages or not, and such set-off or counter-claim shall have the same effect as a statement of claim in a cross action so as to enable the court to pronounce a final judgment in the same action, both on the original and on the cross claim. But the court may if, in the opinion of the court, such set-off or counter-claim cannot be conveniently disposed of in the pending action, or ought not to be allowed, refuse permission to the defendant to avail himself thereof.
4. Notice of counter-claim or set-off
(1) No defendant shall be allowed to set up any such counter-claim or set-off unless he shall have lodged with the clerk of the court, four clear days before the return day, a notice in original, and as many duplicates thereof as there are plaintiffs, containing his name and address and a concise statement of the grounds of such counter-claim or set-off, and shall have paid the same court and service fees as would be payable if he were claiming by writ of summons: [O.24, 25]
Provided that the court may, in its discretion and on such terms as may seem just, allow the defendant to set up a counter-claim or set-off, notwithstanding that such notice has not been duly lodged.
(2) On receipt of notice of counter-claim or set-off, and on due payment of the fees, the clerk of the court shall cause a duplicate of such notice to be served on the plaintiff.
(3) The provisions of order IX as to particulars of claims shall apply, as far as they are applicable, to counter-claim and set-off.
5. Defendant may have judgment for balance due on counter-claim
Where, in any action, a set-off or counter-claim is established as a defence against the plaintiff's claim, the court may, if the balance is in favour of the defendant, give judgment for the defendant for such balance, or may otherwise adjudge to the defendant such relief as he may be entitled to upon the merits of the case.
6. Payment into court where partial set-off Costs
The court, if it sees fit, may order that a defence of partial set-off shall be accompanied by payment into court of the amount to which, on the defendant's showing, the plaintiff is entitled, unless the plaintiff's claim to that amount is resisted on some other ground of defence; and, in default of such payment, the defendant shall be liable to bear the costs of the suit, even if he succeed in his defence to the extent of the set-off on which he relies.
ORDER XXV
TENDER AND PAYMENT INTO COURT
1. Payment into court
A defence alleging tender by the defendant must be accompanied by payment into court of the amount alleged to have been tendered.
2. Payment in full
(1) A defendant in an action in which there is no claim for relief other than the payment of money may, at any time before judgment, pay into court unconditionally or with an admission of liability the whole of the amount claimed in the summons and thereupon all further proceedings in the action shall be stayed save as to any costs not included in such payment.
(2) Where all costs incurred up to and including the date of payment are not included in such payment, the plaintiff shall be at liberty on the return day to apply to the court for judgment for all costs not so paid together with the costs of obtaining judgment.
(3) Money may be paid into court under this rule by one or more of several defendants sued jointly or in the alternative and shall, in such case, be accompanied by a note stating the name and address or names and addresses of the defendant or defendants who have so paid.
(4) The clerk of the court shall, on receipt of any payment into court under this rule, if time permits, send notice of such payment to the plaintiff and, if such payment was made by one or more of several defendants sued jointly or in the alternative, to every other defendant.
(5) Where money is paid into court in accordance with this rule, the clerk of the court shall, on the application of the plaintiff, pay out such money to such plaintiff without any order of the court.
3. Payment in part [O.25]
(1) A defendant in an action may, at any time before judgment, pay money into court-
(a) in satisfaction of part of the claim or part of the claim and costs or, where several causes of action are joined in one action, in satisfaction of the whole or part of the whole or part of one or more causes of action; or
(b) on account of a sum admitted by him to be due to the plaintiff.
(2) Money may be paid into court under this rule by one or more of several defendants sued jointly or in the alternative and shall, in such case, be accompanied by a note stating the name and address or the names and addresses of the defendant or defendants making the payment.
(3) Any payment made under this rule shall be deemed to be made with an admission of liability to the extent of the amount paid unless accompanied by a notice stating that liability is denied.
(4) Any payment into court under this rule shall be deemed to be made on account of the amount claimed unless accompanied by a note stating that it is made in satisfaction of the claim or, where several causes of action are joined in one action, in satisfaction of one or more of the causes of action.
(5) The clerk of the court shall, on receipt of any payment into court under this rule, if time permits, send notice of such payment to the plaintiff and, if such payment was made by one or more of several defendants sued jointly or in the alternative, to every other defendant.
4. Acceptance by plaintiff
Where any amount, being less than the whole amount of the claim and costs, is paid into court unconditionally or with an admission of liability or where the whole amount of the claim and costs is paid into court unconditionally or with an admission of liability but there is a claim for some relief other than the payment of money and the plaintiff elects to accept the amount or any one or more specified amounts paid into court in satisfaction of the whole of his claim or of the cause or causes of action to which the specified amount or amounts relate, the following provisions shall apply- [O.25]
(a) the plaintiff shall, within three days (or such greater number of days as the clerk of the court may on the direction of the Magistrate of such court insert in the notice referred to in sub-rule (5) of rule 3) after the receipt by him of such notice, file with the clerk of the court a notice of acceptance indicating the extent of such acceptance and thereupon proceedings in the action or in respect of any cause of action or in respect of any part of such action or cause of action to which such notice of acceptance relates shall be stayed;
(b) the clerk of the court shall give notice of such acceptance and of the extent of such acceptance to the defendant or, if there be more than one defendant, to each defendant;
(c) if the notice of acceptance relates to the whole claim or if it relates to one or more of several causes of action and the plaintiff within the said period of three days (or such greater number of days as may be prescribed in accordance with paragraph (a)) give notice that he abandons the other cause or causes of action, he may apply to the court for judgment to be entered in his favour for the amount of any costs properly incurred less any part of such costs as may have been included in the payment into court;
(d) where money is paid into court in accordance with this order, the clerk of the court shall, on the application of the plaintiff, pay out such money to such plaintiff without any order of the court.
5. Late acceptance by plaintiff
If a plaintiff fails to give notice of acceptance within the time limited by paragraph (a) of rule 4, he may give notice of acceptance subsequently but the money paid into court shall not be paid out without an order of the court and the court may order the plaintiff to pay all or any costs reasonably incurred by the defendant since the date of payment into court.
6. Non-acceptance by plaintiff
Where any amount referred to in rule 4 is paid into court and the plaintiff does not accept such amount (whether such non-acceptance extends to the whole amount or to any one or more of specified amounts paid into court) in satisfaction of the whole of his claim or in satisfaction of such cause or causes of action to which such specified sum or sums paid into court relate, the action shall proceed in respect of any unsatisfied part of the plaintiff's claim and if on trial judgment is given in favour of the plaintiff-
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