COURT OF APPEAL ACT, 2016: SUBSIDIARY LEGISLATION

"court below" in relation to an appeal to the Court, includes the High Court, a subordinate court, local court or a quasi-judicial body, except a local government elections tribunal;

"case management system" means the system used by the Master and the Court to schedule, assign and track cases;

"conventionally file" means the act of filing or serving of paper documents;

"document management system" means the electronic document storage and imaging system maintained by the Master;

"direct appeal" means an appeal directly from a subordinate court to the Court in terms of section 14 of the Act;

"e-filing" means electronic transmission of an original document to the Court;

"electronic service" means the electronic transmission of a document to parties as required by a written law and rules of a court and as designated by the filing party;

"electronic document" means an original document filed with the Master in electronic format;

"filing" means the act of submitting documents electronically or in paper form to the Master;

"first appeal" means an appeal against a judgment of the High Court in the exercise of its original criminal jurisdiction and against a judgment of a subordinate court in the case of a direct appeal;

"hyperlink" means an electronic connection or reference to another place in a document such that when selected, the user is taken to the portion of the document to which the hyperlink refers;

"ID" means a unique user identification;

"notice of appeal" in relation to a criminal appeal, means a notice lodged in accordance with Order IX and in relation to a civil appeal, means a notice lodged in accordance with Order X;

"officer-in-charge of the prison" means the person appointed to be, or deemed to be, in charge of a prison under section 5 of the Prisons Act;

"parties" includes a plaintiff, defendant or a practitioner representing a plaintiff or defendant;

"PDF" means portable document format, a file format that preserves all fonts, formatting colours and graphics of any source document regardless of the application platform used;

"presiding judge" in relation to the hearing of an appeal, application in the appeal or the delivery of a judgment on the appeal, means the senior judge of the Court as constituted for that appeal or application;

"proceedings" in relation to an appeal to the Court, includes the proceedings at first instance in respect of which the appeal is brought, any proceedings subsequent to the appeal by way of appeal and all applications relating to the proceedings;

"register" in relation to the registration of any proceedings in the Court, means the appropriate register, in electronic and hard copy format, kept by the Master for the registration of the proceedings;

"Registrar" has the meaning assigned to it in the Judiciary Administration Act, 2016;

"Registry" means a registry of the Court of Appeal;

"respondent" means—

(a) in relation to a criminal appeal, a person served with a notice of appeal or application, notice of motion or summons, or entitled to be so served, and includes, in relation to a criminal offence, the Director of Public Prosecutions; and

(b) in relation to a civil application, a person on whom a notice of motion has been served and in relation to a civil appeal, includes a person on whom a notice of appeal has been served and any person, other than the appellant, on whom a notice of cross-appeal has been served;

"respondent’s notice" means the notice of cross-appeal which a respondent gives in accordance with Order X;

"scanned document" means an electronic image created by scanning a paper document;

"second appeal" means an appeal against a judgment of the High Court in the exercise of its appellate jurisdiction;

"source document" means the document as originally submitted to the Master for filing;

"single judge" means a single judge of the Court; and

"TIFF" means a Tag image file Format, a standardised file format used to store imaged documents.

(2) In these Rules, unless the context otherwise requires, in a direct appeal—

(a) a reference to the High Court shall be read as a reference to the subordinate court whose judgment is the subject of the appeal;

(b) a reference to the trial judge shall be read as a reference to the trial magistrate; and

ORDER I
PRACTICE AND PROCEDURE

1. Applicability of English practice and procedure

The jurisdiction vested in the Court shall, as regards practice and procedure, be exercised in the manner provided by the Act and these Rules, the Criminal Procedure Code or any other written law, or by such rules, orders or directions of the Court as may be made under the Act, the Criminal Procedure Code or any other written law, and in default thereof in substantial conformity with the Supreme Court Practice, 1999 (White Book) of England and the law and practice applicable in England in the Court of Appeal up to 31st December, 1999 and in relation to criminal matters, as nearly as may be in accordance with the law and practice for the time being observed in the Court of Criminal Appeal in England.

ORDER II
REGISTRY AND FILING

1. Registry

(1) The Registry shall be situate at Lusaka and in each province that the Chief Justice may direct.

(2) Where the Court is sitting as a circuit court in a province, for purposes of an application or an appeal to be heard in that place, the Registry shall be considered to be situate in that province.

(3) The Registry shall maintain a physical and an electronic register of documents.

(4) The Master shall maintain a register of pleadings, motions, memoranda, orders and other documents filed electronically in a matter as the original and official record of the Court.

(5) A person may conduct an electronic or manual search of the register upon payment of the prescribed fee.

2. Filing of proceedings

(1) A person shall institute proceedings in the Court by filing the appropriate documents in the Registry or electronically.

(2) A document filed in relation to any proceedings in the Court shall be filed in the Registry or electronically.

(3) The Master shall, upon an appeal being lodged in the Registry, assign a serial number to the appeal and enter the—

(a) title of the matter;

(b) name of the appellant and appellant’s practitioner, if any;

(d) date of the entry.

(4) A document required to be filed in the Registry shall not be accepted by the Registry unless the prescribed fees have been paid.

(5) The general heading of the proceedings before the Court shall be substantially in Form I set out in the First Schedule.

3. Signature of documents

(1) A document may be signed on behalf of the person making it or by any person entitled under Order VI to appear on that person's behalf.

(2) A person may append that person’s mark or thumb print to any proceedings in place of a signature.

(3) In criminal appeals, a document may be signed on behalf of an appellant, who is alleged to have a mental disability, by a person in whose care that person may be for the time being, including a medical officer, police officer or prisons officer.

4. Copies

Except as otherwise provided under these Rules, where any document is required to be filed in Court, there shall be filed four copies of such document, but the Master may, in any case, order that a greater or lesser number of copies be filed.

5. Acts done on Saturday, Sunday or public holiday

An act required to be done by a person on a date which fails on a Saturday, Sunday or public holiday shall be valid and effective if done on the next following day not being a Saturday, Sunday or public holiday.

6. Hours for lodging documents

(1) The Registry shall be open for receipt of documents from 09:00 to 12:00 hours and from 14:00 to 15:00 hours.

(2) A document electronically filed during the time when the Registry is not open for receipt of documents shall be deemed to be filed at the time when the Registry is open for receipt of documents.

ORDER III
ELECTRONIC DOCUMENTS AND E-FILING

1. Electronic format of document

Section 5 of the Electronic Communications and Transactions Act, 2009, shall apply where under these Rules a notice, record or other document is required to be in writing.

2. General e-filing

(1) Subject to rule 3, where a matter requires the filing of a document, that document may be filed electronically.

(2) A party appearing in person may file documents using e-filing or conventional filing.

3. Documents permitted to be e-filed

The following types of documents shall be conventionally filed—

(a) documents filed under seal;

(b) audio recordings not expressly authorised by the Court, in writing, to be filed electronically; and

4. E-filing implementation

The Master shall maintain in electronic format an appeal, application, a pleading, motion, summons, memorandum, order or other document electronically filed as the original and official record of the Court.

5. Format of e-filed documents

(1) A filing party shall ensure that an electronically filed document is formatted in accordance with the applicable rules governing formatting of paper documents, rules of procedure and such other formats as the Court may require.

(2) The Master shall not reject a document if it substantially conforms to the rules of procedure or a written law.

6. Accepted file formats

(1) A party may electronically transmit a document in Microsoft Word, Microsoft Works, Microsoft Excel, Rich Text Format, Word Perfect, Portable Document Format and any standard non-proprietary graphic formats.

(2) All documents electronically filed shall, upon acceptance and filing by the Registrar, be converted to Portable Document Format in compliance with the requirements set out in these Rules.

(3) The Court may require a party to produce the original of a scanned exhibit that has been filed electronically by the party.

(4) A party shall ensure that a proposed form of order is submitted electronically in a Microsoft Word file format.

7. Hyperlinks, bookmarks and other electronic navigational aids

(1) An electronically filed document may include hyperlinks, bookmarks and other electronic navigational aids for the convenience of the Court.

(2) A hyperlink shall not form part of the filed document.

(3) A hyperlink shall contain a text reference to the target of the link.

(4) Despite anything contained in these Rules, a hyperlink shall not form part of the official Court record and shall not be preserved in an electronically filed document submitted and stored on the Master’s electronic document management system.

8. User ID and electronic signatures

(1) The Master shall ensure that every party and practitioner is registered and provided with a personally selected user name (ID) and password.

(2) The user name referred to in sub-rule (1) shall, when used in conjunction with the personally selected password, constitute the signature of a registered party on documents submitted to the Court or by the Court.

(3) Despite sub-rule (2), a party may apply an electronic signature to a document to be submitted to the Court.

(4) In order to ensure the intent of the filing party, the signature line on an electronically filed document shall bear the printed name of the filing party preceded by the symbol "/s/".

(5) An electronic document may be signed by the Master through the use of a printed signature preceded by the "/s/" symbol or through the use of the Court’s efiling Manager (EFM) application judicial signature stamp.

(6) The e-filing manager (EFM) application judicial signature stamp shall be merged with the electronic document and shall be visible when the document is printed and viewed electronically.

(7) A document requiring the signature or other identifying indicator of a party shall be filed with the Court in paper format and scanned and maintained consistent with applicable record retention schedules and archival rules.

9. File transmission, confirmation, acceptance and rejection

(1) The Master shall, upon completion of the transmission of an electronic document for filing, immediately scan the document for viruses.

(2) Where the document transmitted under sub-rule (1) is free from infection, the document shall be deemed submitted and the Master shall send an acknowledgment of receipt of the document to the filing party.

(3) A document which has been successfully received shall be reviewed for compliance with all standard filing practices and, if it complies with the standards, shall be accepted and deemed filed as of the date and time it was received by the Master’s e-filing system.

(4) Where a document is infected, the Registrar shall discard the document and send a notice to the filing party that the document was infected and has not been filed.

(5) A notice under sub-rule (4) shall be sent to a filing party or an authorised third party facilitating entity and shall specify the grounds for rejection.

(6) A party whose document has been rejected may resubmit the rejected document with appropriate corrections.

(7) A document received under sub-rule (4) shall be received subject to review, payment of applicable fees and acceptance by the Master.

(8) The Master shall, upon completion of the electronic filing review process, send a notification of the filing status to the filing party and, if accepted, the official file date and time of the filing.

(9) A document accepted for filing by the Master shall be electronically file stamped with the words "ELECTRONICALLY FILED", the time and date of filing and the name of the Master accepting the filing.

(10) The file stamp referred to in sub-rule (9) shall be merged with the electronic document and shall be visible when the document is printed and viewed online.

(11) An electronically filed document that does not bear an electronic file stamp shall be deemed to be incomplete.

(12) An e-filed document stamped in accordance with these Rules shall have the same effect as a conventionally filed document.

10. Responsibility for filing

A party that files a document electronically shall have the same responsibility as a person conventionally filing a document in paper format for ensuring that the document is properly filed, complete and legible and that the appropriate copies have been provided to other parties in the matter.

11. Form of proceedings

(1) The proceedings in the Court shall be on A4 paper of good quality, unless the nature of the document renders it impracticable, and shall be clear and easily legible and may be printed, photocopied, typewritten, written or reproduced in photostat, or in any combination of those media.

(2) One side of the paper shall be used and a margin of not less than 4 centimetres shall be left on the lefthand side of each sheet to permit the binding in book form.

(3) The taxing officer shall, whatever medium of reproduction may be adopted on taxation, allow only those costs which would, in the taxing officer’s opinion, have been reasonably incurred by using the most economical method permitted.

(4) A record of appeal shall be bound in book form with an outside cover of stout paper, and the title of the appeal appearing on the outside cover and may, if long, be in more volumes than one.

(5) A record of appeal shall be paginated continuously throughout, but in criminal cases the preliminary pages comprising the documents relating to the appeal may, for this purpose, be disregarded.

(6) The fifth line of each page of a record of appeal shall be numbered in the unbound portion of the margin in sequences of five.

ORDER IV
REFERRAL OF CONSTITUTIONAL MATTERS

1. Referral of constitutional matters

(1) Where a constitutional question arises in any cause or matter before the Court, the Court shall in accordance with section 4 of the Act, refer such question to the Constitutional Court for determination, stating the question or questions to be determined by the Constitutional Court.

(2) Where in the opinion of the Court the question referred to the Constitutional Court may determine the entire appeal, the Court shall stay the proceedings before it until the determination of that question.

ORDER V
SERVICE OF PROCESS

1. Service of process of Court

(1) A summons, warrant, order, rule, notice or any other document of the Court may be signed by a judge of the Court or by the Master and shall be sealed with the seal of the Court,

(2) An order of the Court shall be dated as of the date on which the judgment was given or order was made and shall, in addition, show the date on which the order was extracted.

(3) Process of the Court may be served in such manner as the Court may direct.

(4) Service shall ordinarily be personal, but where a party to any proceeding has given an address for service, service may be effected by delivery at that address.

(5) The Court may order substituted service of any process and may order that service be deemed to have been effected at any time and in any manner.

(6) Subject to the other provisions of this rule, unless the Court orders otherwise, service of process of the Court shall be effected in the same manner as service of process of the High Court is effected.

(7) The Court may order that process of the Court or notice thereof be served out of the jurisdiction.

(8) The Court may, in any case, order that process of the Court be served upon any party to the proceedings in the Court below on whom it has not been served, or upon any person not party to the proceedings.

2. Address for service

(1) Where in any proceeding in the High Court a party has given an address for service, a notice of appeal from a judgment pronounced in such proceedings may be served on such party at such address for service despite the fact that the address may be that of a practitioner who has not been retained for the purpose of an appeal.

(2) Notice of an application preparatory or incidental to an appeal may be served as prescribed in sub-rule (1) at any time before the date on which the respondent gives or ought to give notice of the address for service in accordance with sub-rule (3).

(3) A person who, by virtue of service on that person of a notice of appeal, becomes a respondent to an intended appeal shall—

(a) within seven days after service on that person of the notice of appeal, file with the Registrar and serve on the appellant notice of a full and sufficient address tor service, including, where available, an electronic mail address; and

(b) within a further seven days, serve a copy of the notice of address for service on the respondent named in the notice of appeal who has filed a notice of an address for service.

(4) A person who files a notice of appeal with the Registrar shall, as soon as practicable, file a copy of the notice in the registry.

(5) If a respondent fails or omits to file or serve a notice of address for service, it shall not be necessary to serve on that respondent, a copy of the record of appeal or of any other proceedings in the appeal or any notice of hearing.

(6) A notice of address for service shall be substantially in Form II set out in the First Schedule.

3. Change of address for service

A person who has an address for service may, at any time, change the address for service, by filing a notice of such change in the Registry and serving copies of it on a person who has been served with the previous address.

4. Service

(1) Where a document is required to be served under these Rules, it may be served in electronic or hard copy format.

(2) Except as otherwise provided in these Rules, the appellant or applicant shall serve the respondent with the appeal or other process within five days of filing or such time as the Court may direct.

(3) Service of process shall be proved by filing an affidavit of service or, if served by the Sheriff, by debit and advice note.

5. Effecting of service

Personal service of an appeal, application or other document of which service is required, may be made by any person.

6. Document to be explained

A person serving a document shall, on the request of the party served, explain to that party the contents of the document.

7. Acknowledgment of service

A person serving an appeal or application which would entitle the appellant or the applicant to enter final judgment shall request the party served to acknowledge receipt by signing on the original or copy of the process or on some other document tendered for the purpose, and the fact of a refusal to sign shall be endorsed by the person serving the process.

8. Substituted service

(1) Where personal service of an appeal, application, order, document, proceeding or written communication is required and it is made to appear to the Court or a judge of the Court that prompt personal service cannot be effected, the Court or judge may make an order for substituted or other service, or for the service of notice by letter, public advertisement or otherwise as may be just.

(2) An application to the Court or a judge of the Court for an order to be made under this rule shall be supported by an affidavit setting out the grounds upon which the application is made.

9. Restriction on service of process

Court process shall not be served on a Saturday, Sunday or public holiday.

10. Mode of service when personal service not required

(1) A document or proceeding in respect of which personal service is not required shall be sufficiently served if—

(a) left at the address for service of the person to be served with any person resident at or belonging to such place; or

(b) posted in a prepaid registered envelope addressed to the person to be served at the postal address for service.

(2) Where service of a document under this rule is made by registered post, the time at which the document so posted would be delivered in the ordinary course of post shall be considered as the time of service of that document.

11. Service upon practitioner of party formerly appearing in person

Where a party, after having commenced an action or appearing in person, gives notice, in writing, to the opposite party through a practitioner that the practitioner is authorised to act in the cause or matter on that party’s behalf, all documents or proceedings which ought to be delivered to or served upon the party on whose behalf the notice is given shall be delivered to or served upon that practitioner.

12. Service on partners

(1) Where partners are sued in the name of their firm, documents or proceedings required to be served shall be served upon any one or more of the partners or at the principal place, within the jurisdiction, of the business of the partnership upon any person having, at the time of the service, the control or management of the partnership business.

(2) Where a matter is commenced against a firm, a person upon whom it is served shall be informed by notice, in writing, given at the time of such service whether that person is served as a partner or as a person having the control or management of the partnership business, or in both characters.

(3) Where no notice is given to the person referred to in sub-rule (2), the person served shall be deemed to be served as a partner.

(4) Service of a document or other court process on a body corporate other than a company shall be effected on any office bearer.

13. Service 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 document or court process at the prison to the jailer or person appearing to be the head or officer-in-charge of the prison, who shall cause the same to be served on such prisoner.

14. Service on person in asylum or prison

Where the person on whom service is to be effected is employed and dwells in any medical institution or any other public asylum or in any prison, it shall be sufficient service to deliver the document or court process to the gatekeeper or lodge keeper of that asylum or prison, who shall cause the same to be served on that person.

15. Service on respondent out of jurisdiction but carrying on business within jurisdiction

Where a matter is against a respondent residing outside Zambia but carrying on business within Zambia in that person’s own name or under the name of a firm, through an authorised agent, and such matter is limited to a cause of action which arose within Zambia, the court process or document may be served by giving it to the authorised agent, and such service shall be equivalent to personal service on the respondent.

16. Application for leave to serve out of jurisdiction

(1) An application for leave to issue court process for service out of the jurisdiction may be made ex parte to the Court or a judge of the Court.

(2) The application referred to in sub-rule (1) shall state—

(a) the grounds upon which the application is made and the facts which bring the applicant’s case within the class in respect of which service out of the jurisdiction may be allowed;

(b) that the deponent is advised and believes that the applicant has a good cause of action or right to relief;

(d) whether the respondent is a citizen of Zambia or not.

17. Service on foreign person in foreign country

Where court process is issued for service outside Zambia upon a person who is not a citizen of Zambia, notice of the court process and not the court process itself shall be served on that person.

18. Service where violence threatened

Where an officer of the Court or a person charged with the service of court process on a person is prevented from personally serving the court process on that person because of the violence or threats of that person, or any other person in concert with that person, it is sufficient to inform the person to be served of the nature of the court process and to leave the court process as near that person as is practicable.

ORDER VI
APPEARANCE

1. Appearance

(1) A party to proceedings in the Court may appear in person or by a practitioner.

(2) A person under disability shall appear by next friend or legal guardian, as the case may be, and such next friend or legal guardian shall be represented by a practitioner.

(3) The Court may appoint a legal guardian for the purposes of an appeal and may, at any time, remove and replace any legal guardian however appointed.

(4) Except in cases where a next friend or legal guardian is appointed by order of the Court, a next friend or legal guardian shall file a written consent to be such next friend or legal guardian and shall be considered duly appointed as such.

ORDER VII
INTERLOCUTORY APPLICATIONS

1. interlocutory application

(1) An interlocutory application under the Act shall be by notice of motion or summons in substantially Form III and Form IV, respectively, set out in the First Schedule.

(2) An interlocutory application may be heard and determined by a single judge, except that the direction or order made on an interlocutory application shall not operate so as to prejudice the Court from giving a decision on a case if the Court considers just.

2. Application before single judge

(1) An application to the Court not involving the decision of an appeal shall, unless made in the course of the hearing of an appeal, be made in the first place to a single judge.

(2) An application to a single judge shall be heard in open court or in chambers as the single judge may direct.

(3) if an appeal is pending, any application made in connection with the appeal, shall be entitled in the appeal.

(4) If no appeal is pending, an application shall be entitled as a criminal or civil application and in the matter of the intended appeal or otherwise as may be appropriate.

(5) For the purpose of this rule, an appeal shall not be pending until it has been duly entered in the register.

(6) For the purpose of constituting a Court, the single judge who dealt with or refused an application shall not sit as a member of the Court determining the application.

(7) Where an application in a criminal matter has been dealt with by a single judge, the Master shall notify the appellant of the decision in Form V set out in the First Schedule.

(8) When an appellant is notified that the application referred to in sub-rule (7) has been refused, the appellant wishing the application to be heard by the full Court shall lodge with the Master, within 14 days of receipt of that notification, a notice requesting the application to be heard by the full Court.

(9) The notice referred to in sub-rule (8) shall be substantially in Form VI set out in the First Schedule.

(10) Where an application in a criminal matter has been dealt with by the full Court, the Master shall notify the appellant of the decision in Farm VII set out in the First Schedule.

(11) If the appellant has not lodged any notice within the prescribed time, the refusal of the application by the single judge shall be final.

3. Setting aside or varying order of Registrar or Master

(1) A person aggrieved by anything done or ordered to be done by the Registrar or Master, other than any thing ordered or done by the direction of the Chief Justice, may apply to a single judge to have that act order or ruling set aside or varied.

(2) An application under sub-rule (1) shall be made by notice of motion supported by an affidavit setting out the complaint and the relief sought.

(3) The judge may, before a ruling on an application under this rule is made, give such directions or make such order on the application as that judge considers just.

4. Failure to respond within stipulated time

(1) If the respondent does not respond within the time stipulated for the response to an application, the Court may hear and determine the application in the respondent’s absence.

(2) The Court may, subject to an order as to costs that the Court may make, set aside a decision made under sub-rule (1) on its own motion or upon the application of the respondent or a party affected by the decision.

ORDER VIII
AMENDMENT

1. Amendment of process

A party that wishes to amend the process or any document may, before the conclusion of the hearing apply to the Court for leave to amend process or document.

2. Power to amend

The Court may allow the amendment of any proceedings before the close of the hearing on such terms as the Court considers necessary.

ORDER IX
CRIMINAL APPEALS

1. Notice of intention to appeal and application for leave to appeal

(1) A notice of intention to appeal or application for leave to appeal shall be in writing and the appellant shall file four copies of that notice with the Master within 30 days from the date of the judgment appealed against.

(2) The Master shall, immediately after the filing of the notice or application referred to in sub-rule (1), enter it in the register and notify the Registrar of the notice or application and the serial number assigned to it.

(3) The Master shall upon receipt of a notice of intention to appeal or application for leave to appeal, send a copy of the notice to the Director of Public Prosecutions.

(4) A notice of intention to appeal or application for leave to appeal shall—

(a) state whether the appeal is against the whole or a portion of the judgment; and

(b) contain an address, including an electronic mail address, where applicable to which a notice or document connected with the appeal may be served upon the appellant or upon the appellant’s practitioner and, subject to the provisions of Order V, shall be signed by the appellant or that appellant’s practitioner.

(5) Where persons have been jointly tried and any two or more of them desire to appeal, they may file separate or joint notices of intention to appeal or applications for leave to appeal.

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