(2) Sub-rule (1) shall not apply to an arrangement or association with a person who solicits or receives contingency fees only in respect of proceedings in a country outside Zambia, to the extent that a local lawyer in that country would be permitted to receive a contingency fee in respect of such proceedings.”. Does the expert owe his/her duties to the client or to the court? See Order 4 and Rule 5.02 (2) of the Supreme Court (General Civil Procedure) Rules 2015 for more information. However, the British Limitation Act, 1939 is subject to amendments by the Zambian statute called the Law Reform (Limitation of Actions, Etc. The expert witness must either observe the facts on which his opinion is based, or he must make a hypothesis. ICLG.com > Notice. These are referred to as third-party proceedings. 2.Â Â Â The forms in the Schedule, or forms substantially to the like effect, shall be used for the following purposes, that is to say: (a)Â Â Â Â Â Â Â a notice under the provisions of section four of the Act, being a notice terminating a tenancy of the business premises to which the Act applies, shall be in Form 1; (b)Â Â Â Â Â Â Â a notice under the provisions of section six of the Act, being a tenant's request for a new tenancy of business premises to which the Act applies, shall be in Form 2; (c)Â Â Â Â Â Â Â a notice under the provisions of subsection (1) of section twenty-one of the Act, being a notice requiring a tenant of business premises to give information as to his occupation of the premises and as to any sub-tenancies, shall be in Form 3; (d)Â Â Â Â Â Â Â a notice served under the provisions of subsection (2) of section twenty-one of the Act on a landlord of business premises, being a notice requiring that landlord to give information about his interest in the premises, shall be in Form 4; (e)Â Â Â Â Â Â Â a notice served under the provisions of subsection (2) of section twenty-one of the Act on a mortgagee in possession of business premises, being a notice requiring that mortgagee to give information about his mortgagor's interest in the premises, shall be in Form 5. Log in The Commercial Court, on the other hand, is judge driven. (4)Â The provisions of subsections (1), (2) and (3) shall not apply to a notice served by or on the tenant more than two years before the date on which, apart from this Act, his tenancy would come to an end by effluxion of time or could be brought to an end by notice to quit given by the landlord. Is it permissible for a non-party to litigation proceedings to finance those proceedings? If so, in what circumstances? Form and issue of notice of motion. 3.4 Can the pleadings be amended? In the circumstances, I would order that each party bears his own costs.”. (b)Â Â Â Â Â Â Â if the tenant has made a request for a new tenancy in accordance with section six. As such, once a claim is lodged in the High Court, the judge sets up a scheduling conference where the timeline for filing of the pleadings is agreed with the parties. The only restriction is that the amendments should not prejudice or embarrass the other party to the litigation. The appeal for the local courts takes the form of a rehearing on the record and matters are heard afresh (de novo). 10.1 Are there any formal mechanisms in your jurisdiction by which parties are encouraged to settle claims or which facilitate the settlement process? Originating Notice of Motion; Judicial Review; Appeal from the Circuit Court; Statutory Appeal; Defending a case; Exchange of documents before case is ready for trial; Filing a High Court affidavit; Getting a date for hearing: setting a case down for trial; Guidelines for Persons Representing Themselves In The High Court; In Court; After Court A defendant is expected to prepare a statement of defence in response to the claim. There are no pre-action remedies available in Zambia. 7.1 What are the basic rules of disclosure in civil proceedings in your jurisdiction? 19 of 2000, and by virtue of the provisions of Section 8 of the Act. 11.Â Â Â An application by a tenant under subsection (4) of section ten of the Act to the court to extend the period specified under subsection (3) of that section shall be made ex parte in chambers. (1) Any originating notice of motion by which an application is made under the Act shall be issued out of the court, or the principal or district registry of the court, for the province or district, as the case may be, in which the premises to which the application relates are situated. Zambia. This is provided under Order 17 of the High Court Rules. Application under section 12 (2) (b) of the Act. landlord of the above-mentioned premises, hereby give you notice terminating your tenancy on the Â What interim applications can the parties make? With respect to the failure of a party to abide by case management orders or orders for directions, the court will condemn a party to bear costs for failure, and the Commercial Division will impose a punitive hearing payable before the next hearing date. The courts do have such powers and some of the interim applications that parties can make are injunctions. It is important to note that in the Commercial Division of the High Court, a defendant is not allowed to offer statements that fall in the realm of bare denials, as the party setting a defence must specifically traverse the pleadings in the plaintiff’s claims. (b)Â Â Â Â Â Â Â reference in any of the provisions of this Act to the holding shall be construed as reference to the whole of that property. (c)Â Â Â Â Â Â Â there are no other persons with interests in the property who are likely to be affected. 8.3 Are there any particular rules regarding the calling of witnesses of fact, and the making of witness statements or depositions? Only in post-action interim remedies such as injunctions, and in Judicial Review proceedings, is grant of leave operating as a stay of a decision of an administrative body available. The nature of the precise document entirely depends on the rules that prescribe the procedure of that particular court. 1.1 What type of legal system does your jurisdiction have? An Originating Summons may be in Inter partes or Ex-parte of the Rules of Court. If so, what are those circumstances? In this case, it would be prudent to enter what is referred to as a conditional appearance, which is a notice of intention to defend under protest pending an application to set aside the originating process on the grounds that the court is wanting in jurisdiction. The law regarding limitation of actions in Zambia is governed by the provisions of the British statute known as the Limitation Act, 1939, the application of which is extended to the Zambian jurisdiction by virtue of the provisions of Section 2 of the British Acts Extension Act Chapter 10, Volume 2 of the Laws of Zambia. The general rule is that documents privileged in Zambia are not admissible for the purposes of civil proceedings. 8.4 Are there any particular rules regarding instructing expert witnesses, preparing expert reports and giving expert evidence in court? Form 67 - Application for Judicial Review. 8. (a)Â Â Â Â Â Â Â where under the current tenancy the tenant has any obligations as respects the repairs and maintenance of the holding, that the tenant ought not to be granted a new tenancy in view of the state of repair of the holding, being a state resulting from the tenant's failure to comply with the said obligations; (b)Â Â Â Â Â Â Â that the tenant ought not to be granted a new tenancy in view of his persistent delay in paying rent which has become due; (c)Â Â Â Â Â Â Â that the tenant ought not to be granted a new tenancy in view of other substantial breaches by him of his obligations under the current tenancy, or for any other reason connected with the tenant's use or management of the holding; (d)Â Â Â Â Â Â Â that the landlord has offered and is willing to provide or secure the provision of alternative accommodation for the tenant, that the terms on which the alternative accommodation is available are reasonable, having regard to the terms of the current tenancy and to all other relevant circumstances, and that the accommodation and the time at which it will be available are suitable for the tenant's requirements (including the requirement to preserve goodwill) having regard to the nature and class of his business and to the situation and extent of, and facilities afforded by, the holding; (e)Â Â Â Â Â Â Â where the current tenancy was created by the subletting of part only of the property comprised in a superior tenancy and the landlord is the owner on the termination of the superior tenancy, that the aggregate of the rents reasonably obtainable on separate lettings of the holding and the remainder of that property would be substantially less than the rent reasonably obtainable on a letting of that property as a whole, that on the termination of the current tenancy the landlord requires possession of the holding for the purpose of letting or otherwise disposing of the said property as a whole, and that in view thereof the tenant ought not to be granted a new tenancy; (f)Â Â Â Â Â Â Â Â that on the termination of the current tenancy the landlord intends to demolish or reconstruct the premises comprised in the holding or a substantial part of those premises or to carry out substantial work of construction on the holding or part thereof and that he could not reasonably do so without obtaining possession of the holding; (g)Â Â Â Â Â Â Â save as otherwise provided in subsection (2), that on termination of the current tenancy the landlord intends to occupy the holding for the purposes, or partly for the purposes, of a business carried on by him therein, or as his residence. Originating application for inquiry relating to a ballot under Part 2 of Chapter 3 of Schedule 1 to the Fair Work (Registered Organisations) Act 2009 (doc - 50.5 kb) Rule 34.07(1) 1/8/11 (Revised – April 2006) (a)Â Â Â Â Â Â Â the parties to the application have agreed on the subject, period and terms of the new tenancy; (b)Â Â Â Â Â Â Â the owner of any reversionary interest in the property consents thereto; and. (4)Â In the case of any other tenancy, a notice under this section shall not specify a date of termination earlier than the date on which, apart from the provisions of this Act, the tenancy would have come to an end by effluxion of time. (6)Â A notice under this section shall not have effect unless it states whether the landlord would oppose an application to the court under this Act for the grant of a new tenancy and, if so, also states on which of the grounds mentioned in section eleven he would do so. Tothis end, Section 44 (1)(a)ofthe HighCourt Actstates that Rules ofthe court may be made: Contents of notice of motion 18.4. This is inferred from the provisions of Order 14 Rules 8 and 9 of the High Court Rules. As a matter of practice and procedure, such a challenge must be brought as a preliminary issue (issue in limine) before submission of the defendants’ statement of defence. For parties based out of the Zambian jurisdiction that are sued, the rules provide that leave has to be sought from the court to issue and serve court process out of jurisdiction. Eric Silwamba, SC In the event that the claim is for unliquidated (unquantified) damages, a judgment cannot be entered in default; as such, the matter has to be set down for trial notwithstanding the fact that a defence has not been entered. Lastly, Order 24 Rules 1 and 2 (24/2/3) of the Rules of the Supreme Court (the White Book) 1999 Edition, Volume 1 note that the meaning of “documents” is not restricted to paper writings, but extends to anything upon which evidence or information is recorded in a manner intelligible to the senses or capable of being made intelligible by the use of equipment. The LT deals with all land disputes. As stated earlier, witness statements are only required in the commercial court of the High Court. In this respect, where the parties have agreed to grant exclusive jurisdiction to a particular court, the court will readily enforce such an agreement provided the claim is not illegal or contrary to public policy. It is also imperative to note that the jurisdiction of Small Claims Courts is limited to liquidated claims that do not exceed the sum of ZMW 20,000.00, which is equivalent to approximately USD 1,500.00 as at the time of writing. A witness who has been called to give evidence before the court shall adduce such evidence viva voce (word of mouth). She said the notice of motion by Vedanta has no legs to stand on. Act provides as follows: “3. 4.4 What happens if the defendant does not defend the claim? The ex-parte order of injunction dated January 18, 2021 is according discharged forthwith,” she said. What is the deemed date of service? Â Â Â Upon any application under the Act to the court there shall be paid in respect of the filing of such application a fee of fifty fee units where the application is made to the High Court and fifty fee units where the application is made to a Subordinate Court. However, in 2002, the High Court Practice was limited to English procedure provided in the Rules of the Supreme Court 1965 (The White Book), in particular in the 1999 Edition. The rules that apply to filing and preparing a writ or originating motion are found under Orders 5 and 27 of the County Court Civil Procedure Rules 2018. (4)Â The court may, for sufficient reason and on such terms as it thinks fit, permit a tenant to apply to the court for a new tenancy under subsection (1) of section four, notwithstanding that the application is not made within the period specified in subsection (3). 19 of 2000. 11.1 What methods of alternative dispute resolution are available and frequently used in your jurisdiction? Requirement for notice 18.3. An Act to provide security of tenure for tenants occupying property for business, professional and certain other purposes; to enable such tenants to obtain new tenancies in certain cases; and to provide for matters connected therewith and incidental thereto. Most specialised contracts prefer arbitration because it is quicker, and the parties can get an expert in the subject area of the contract to arbitrate. These rules are called Mediation Rules. (a)Â Â Â Â Â Â Â the court shall make a declaration to that effect, stating on which of the grounds the court would have been satisfied as aforesaid and specifying the date determined by the court as aforesaid, but shall not make an order for the grant of a new tenancy; (b)Â Â Â Â Â Â Â if, within fourteen days after the making of the declaration, the tenant so requires, the court shall make an order substituting the said date for the date specified in the said landlord's notice or tenant's request, and thereupon that notice or request shall have effect accordingly. Further to this, Order 19 Rule 2 of Statutory Instrument No. Provisions as to mortgagees in possession. There are two recognised arbitral institutions, namely the Zambia Association of Arbitrators (“ZAA”) and the Chartered Institute of Arbitrators Zambia Branch (“CIArbZB”). The cardinal pieces of legislation, with respect to the constitution and jurisdiction of the courts, are the Local Courts Act, the Small Claims Court Act, the Subordinate Court Act, the High Court Act, the Industrial and Labour Relations Act, the Court of Appeal Act, the Constitutional Court Act, and the Supreme Court of Zambia Act. Are there any classes of documents that do not require disclosure? (3)Â The rent determined in proceedings under subsection (1) shall be deemed to be the rent payable under the tenancy from the date on which the proceedings were commenced or the date specified in the landlord's notice or the tenant's request, whichever is later. A statement of defence consists of a traverse of each of the claims made by the claimant in the statement of claim, as well as a counterclaim, if any. This is in line with Order 14 Rule 4 of the High Court Rules. A court can also order mediation on its own motion. (2)Â If the tenant, within fourteen days after the making of an order under this Act for the grant of a new tenancy, applies to the court for the revocation of the order, the court shall revoke the order; and where the order is so revoked, then, if it is so agreed between the landlord and the tenant or determined by the court, the current tenancy shall continue beyond the date at which it would have come to an end, apart from this subsection, for such period as may be so agreed or determined to be necessary to afford to the landlord a reasonable opportunity for re-letting or otherwise disposing of the premises which would have been comprised in the new tenancy; and while the current tenancy continues by virtue of this subsection it shall not be a tenancy to which this Act applies. The appeals for the Tribunals fall to the Court of Appeal. 28.Â (1)Â Notwithstanding anything to the contrary contained in this Act or any other written law or in any lease, a tenant whose tenancy commences on or after the 1st January, 1972, and to which tenancy this Act applies, may, within three months from the commencement thereof (if he is aggrieved by the rent payable thereunder), apply to the court for determination of rent; and, subject to the provisions of subsection (2), the court shall determine the rent which shall be substituted for the rent agreed to be paid under the tenancy. Notice in writing of the election to make such payment, specifying the cause of action in respect of which payment is made, shall be lodged in court with the first payment into court. If so, at what stage and in what circumstances? LANDLORD'S NOTICE TO TERMINATE TENANCY OF BUSINESS PREMISES. 4.5 Can the defendant dispute the court’s jurisdiction? Arbitration is very common in commercial matters. 12.Â (1)Â If the landlord opposes an application under subsection (1) of section four on grounds on which he is entitled to oppose it in accordance with section eleven and establishes any of those grounds to the satisfaction of the court, the court shall not make an order for the grant of a new tenancy. (c) by the insertion in subsection (1) of section 31 after the definition of “personal property” of the following definition: “personal injuries” includes any disease and any impairment of a person’s physical or mental condition.”. 3.2 Are any pre-action interim remedies available in your jurisdiction? Additional provisions are to be found in Order 16 of the Rules of the Supreme Court (The White Book) 1999 Edition, Volume 1 with respect to joinder of parties and third-party proceedings. An expert is one who connotes receipt of formal training and qualification, but this is not always the case. 6.5 Can the civil courts in your jurisdiction enter summary judgment? 8.2 What types of evidence are admissible, and which ones are not? (Please provide a brief overview of each available method.). LANDLORD ABOUT LANDLORD'S INTEREST. (c)Â Â Â Â Â Â Â prescribing the fees which shall be payable in respect of any matter or thing to be done under this Act. The reference to mediation by a court is an order, and as such, parties cannot refuse to go for mediation. In consequence, it was found that this was a case where a full trial was necessary to establish liability and the defendant should have an opportunity to defend. Interim continuation of tenancies pending determination by court, (a)Â Â Â Â Â Â Â a notice to terminate a tenancy has been given, or a request for a new tenancy has been made, under this Act; and, (b)Â Â Â Â Â Â Â an application to the court has been made under this Act; and. Dentons Eric Silwamba, Jalasi and Linyama, Dentons Eric Silwamba, Jalasi and Linyama, The International Comparative Legal Guides and the International Business Reports are published by: Global Legal Group, We are a legal department covering whole of Europe. (3)Â Where the current tenancy includes rights enjoyed by the tenant in connection with the holding, those rights shall be included in a tenancy ordered to be granted under section ten. Â Â Â 3.Â Â Â This notice is given under the provisions of section 21 (2) (a) of the Landlord and Tenant (Business Premises) Act. The same limitation period of six (6) years also applies to contractual liability. (b)Â Â Â Â Â Â Â the tenant is willing to accept a tenancy of an economically separable part of the holding and either paragraph (a) is satisfied with respect to that part or possession of the remainder of the holding would be reasonably sufficient to enable the landlord to carry out the intended work. Rule 9 of the Rules provides as follows: “9. There has been an increase in the use of arbitration, mediation and tribunals by litigants in Zambia. An expert cannot testify on everything and thus, his testimony is restricted. Order of dismissal of application under section 4 which is successfully opposed. (3)Â Where an order is revoked under subsection (2), any provisions thereof as to payment of rent shall not cease to have effect by reason only of the revocation; but the court may, if it thinks fit, revoke or vary such provision, or where no costs have been awarded in the proceedings for the revoked order, award such costs. The Arbitration Act has comprehensive provisions in arbitration to provide for interim or provisional protection. from disposing of property that is the subject matter of the litigation). (3)Â The court shall fix the date (which date shall not in any case be earlier than the date of commencement of the tenancy) from which the rent so determined under subsection (1) shall be payable by the tenant, and any sum paid in excess of the rent so determined shall be recoverable from the landlord who received the payment, or from his legal personal representative, by the tenant who paid such sum; and any such sum, and any other sum which, under the provisions of this Act is recoverable by a tenant from a landlord or payable or repayable by a landlord to a tenant, may, without prejudice to any other method of recovery, be deducted by the tenant from any rent payable by him to the landlord. On the same day, the applicant also filed an interlocutory motion which essentially seeks the same relief as that requested in items 2 and 3 in the originating notice of Motion. advertisement in a newspaper of wide circulation. Service of originating summons, petition, notice of motion etc. (a)Â Â Â Â Â Â Â any effect on rent of the fact that the tenant has or his predecessors in title have been in occupation of the holding; (b)Â Â Â Â Â Â Â any goodwill attached to the holding by reason of the carrying on of business by him or by his predecessor; (c)Â Â Â Â Â Â Â any effect on rent of any improvement carried out by the tenant or a predecessor in title of his otherwise than in pursuance of an obligation to his immediate landlord. The test established is that the proponent must present proof that the article is what the proponent claims it to be. (4)Â A tenant's request for a new tenancy shall not be made if the landlord has already given notice under section five to terminate the current tenancy, or if the tenant has already given notice to quit or notice under section eight; and no such notice shall be given by the landlord or the tenant after the making by the tenant of a request for a new tenancy. In the case of Chuba v The People (1976) Z.R. Their decisions are final and not subject to appeal, save for a review by fellow Commissioners. This would also apply in contribution claims during winding-up proceedings where the defendant or a third party can apply to the court to have the third party joined to the proceedings. In an application for prerogative orders of certiorari, prohibition, mandamus, Habeas Corpus or enforcement of Fundamental Human Rights, originating motion may be used. ., of Â Â Â Â Â Â Â Â Â , 58 of 2020 of the High Court (Amendment) Rules 2020 now provides for Pre-Trial Directions and Conferences. This could be by way of writ of summons, originating summons, originating notice of motion, petition, notice of claim, appeal, notice of complaint or default writ of summons filed into court by the plaintiff as provided under the respective rules of the particular court. The rule is that if the parties have agreed to include an arbitration clause in the agreement, then the Zambian courts have no jurisdiction to adjudicate on the matter. Rule 21(1) of the Industrial Relations Court (Arbitration and Mediation Procedure) (Amendment) Rules, 2007 states that where the mediation fails, the record of proceedings should be returned to the court. originating motion Quick Reference An application (motion) that commences a proceeding in a court: e.g. Are there any particular rules regarding concurrent expert evidence? 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