Determination of rent in respect of tenancies commencing on or after 1st January, 1972, (2)  The rent determined by the court under subsection (1) shall be that at which, having regard to the terms of the tenancy (other than those relating to rent), the holding might reasonably be expected to be let in the open market by a willing lessor to a willing lessee, there being disregarded-. On the other hand, mediation agreements or settlements need to be registered in the courts for them to be recognised as binding. According to Section 17 of the High Court Act, civil appeals from the subordinate court shall be heard by one judge unless the Chief Justice directs that it be heard by two, in which case if the two judges differ in opinion, the appeal will be dismissed. 8.4        Are there any particular rules regarding instructing expert witnesses, preparing expert reports and giving expert evidence in court? (1) The notice of an originating motion must be in Form 9 and thenotice of any other motion in Form 10. More specifically, a defendant can join a party for purposes of being indemnified or seeking contribution to liability after the successful prosecution of a plaintiff’s claim. The respondent has the right to respond by filing the “Respondent’s Heads of Arguments”. (a)        the name and address of the person who is your mortgagor's immediate landlord in respect of the premises or of the part of which your mortgagor is not the owner of the fee simple; (b)        what is the term of your mortgagor's tenancy; and. 3. Litigation & Dispute Resolution > Are there any special rules concerning the disclosure of electronic documents or acceptable practices for conducting e-disclosure, such as predictive coding? A party to an action may also make an application to set aside a matter for irregularity in accordance with Order II Rule 2 of the Rules of the Supreme Court (The White Book) 1999 Edition. As stated earlier, witness statements are only required in the commercial court of the High Court.     Dated this ........................................................... day of     19 ....... NOTICE BY TENANT OF BUSINESS PREMISES REQUIRING INFORMATION FROM LANDLORD'S NOTICE TO TERMINATE TENANCY OF BUSINESS PREMISES. Application under section 12 (2) (b) of the Act. Domestic judgments are enforceable in the country pursuant to the provisions of Order XLII of the High Court Rules of the High Court Act, Chapter 27, Volume 3 of the Laws of Zambia. For example, in Muliango and Another v. Masaga and Another, the learned trial judge found that the defence furnished by the first defendant appeared to be valid and would succeed if sufficiently supported by evidence. tenant of the above-mentioned premises, hereby require you, within one month of the service of this notice upon you, to notify me in writing whether you are the owner of the fee simple of the whole or any part of the premises. There are no pre-action remedies available in Zambia. In the event that no agreement is reached by way of mediation, the matter is referred back to the court for trial. The Record of Appeal should contain all the documents that were relied upon by the parties in the court bellow. The expert witness must either observe the facts on which his opinion is based, or he must make a hypothesis. In an affidavit in opposition to originating notice of motion for judicial review, University of Zambia registrar Sitali Wamundila said the remarks uttered by Mambwe that ‘only idiots or those enjoying with PF would vote for them if elections were held today’, incited industrial disharmony. There has been an increase in the use of arbitration, mediation and tribunals by litigants in Zambia. Act provides as follows: “3. Other rules of evidence include authentication and notarisation of foreign documents before they are admitted, corroboration and rules on admission of computer-generated evidence. SECTION 27-THE LANDLORD AND TENANT (BUSINESS PREMISES) REGULATIONS. Pleadings can be amended upon application to court. Corporations are not allowed to sue as claimants, but can be sued in the Small Claims Courts. 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. An originating motion is used only when it is specifically required by law. Rule 9 of the Rules provides as follows: “9. However, the British Limitation Act, 1939 is subject to amendments by the Zambian statute called the Law Reform (Limitation of Actions, Etc. Currently, it also determines matters relating to the Bill of Rights as enshrined in the Constitution. Leave to serve short notice of motion may be obtained on ex parte application to the court. Log in Where an expert witness who prepares a report and cannot assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report. 54 r5. 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. As stated earlier, the Zambian courts to a very large extent consider English authorities to be highly persuasive. (3)  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. (c)        apart from this section, the effect of the notice or request would be to terminate the tenancy before the expiration of the period of three months beginning with the date on which the application is finally disposed of; the effect of the notice or request shall be to terminate the tenancy at the expiration of the said period of three months and not at any other time. The courts also issue the parties with Orders for Direction which, if not complied with, can result in the parties being ordered to bear costs. The court will, upon proof of proper service, enter a judgment in default of defence and appearance. Significantly, where a state has not provided for a method for enforcing a right conferred by that statute, originating motion should be used – Order 40 Rule 5(1) Lagos; Order 43 Rule 5(1) Kano; and Order 42 Rule 5(1) Abuja . As earlier stated, the procedure of the High Court has a peculiar difference with that of other courts which adopt a party-driven procedure. (2)  Where the tenant of any premises, being a tenant under such tenancy as is mentioned in subsection (1) of section six, serves on any of the persons mentioned in subsection (3) a notice in the prescribed form requiring him to do so, it shall be the duty of that person to notify the tenant in writing within one month after the service of the notice-, (a)        whether he is the owner of the fee simple in respect of those premises or any part thereof, or the mortgagee in possession of such an owner; and if not. 9.2        What powers do your local courts have to make rulings on damages/interests/costs of the litigation? 7.4        What is the court’s role in disclosure in civil proceedings in your jurisdiction? a concise summary of the facts, including the agreed facts and admissions; a concise summary of the issues and the law to be relied on by each party, including the rights and interests of the party; a witness statement, which shall contain all the facts relevant to the claim as the case may be, and make reference to the documents relied upon in the bundle of documents; and. In the event that service cannot be effected personally, an application to the respective court is made for an order to effect service by means of substituted service, e.g. The minimum time limit is 14 days, while the maximum is 42 days. In the High Court, the judge in charge is given powers to allocate cases, the deputy judge in charge allocates the cases in the Commercial Registry, and in the Subordinate Court the Chief Principal Magistrate is in charge of allocation of cases. 613 following Alterskye v. Scott [1948] 1 All E.R. (b)        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. Already registered? (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. 3.  (1)  Subject to the provisions of subsection (2), this Act shall apply to all tenancies in Zambia. With respect to tortious liability (for conversion and misfeasance in public office), the limitation period is six (6) years. (3)  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. Defendants are at liberty to make counterclaims by filing a defence together with a counterform. The judge will then proceed to hold status conferences until the case is set down for hearing. 8.3        Are there any particular rules regarding the calling of witnesses of fact, and the making of witness statements or depositions? Compensation for possession obtained by misrepresentation. What about expert evidence in particular? 31 of 1973 landlord of the above-mentioned premises, hereby give you notice terminating your tenancy on the   The only class of documents that do not require disclosure are public documents, i.e. The answer to the question on damages is above. 1.1        What type of legal system does your jurisdiction have? originating motion Source: Australian Law Dictionary Author(s): Trischa MannTrischa Mann, Audrey BlundenAudrey Blunden. Further to this, Order 19 Rule 2 of Statutory Instrument No. 20.    Any agreement relating to a tenancy to which this Act applies (whether contained in the instrument creating the tenancy or not) shall be void in so far as it purports to preclude the tenant from making an application or request under this Act, or provides for the termination or surrender of the tenancy in the event of his making such an application or request, or for the imposition of any penalty or liability on the tenant in that event. The plaintiff is at liberty to apply to enter a judgment on admission if a defendant lodges a statement of defence falling in the realm of bare denials. The Zambian civil court system is composed of the Supreme Court which determines all appeals from the Court of Appeal. It is important to note that, prior to 31st December, 2002, in the event that local procedure in this jurisdiction did not provide for the particular procedure issue, recourse was made to the procedure at that moment being applied in the English High Court of Justice. JUDGEMENT NO. Practice Areas > A civil action (case) can be commenced by filing of Court process (documents), such as Writ of Summons, Originating Summons, Originating Notice of Motion, Petition, etc. 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 notice of appeal must be made within 14 days from the date of the judgment. Legal practitioners do not have an audience as in the Local Court and are expressly proscribed from representing parties. 1.2        How is the civil court system in your jurisdiction structured? Where necessary, the defendant has a right to challenge the jurisdiction of the court. (2)  In determining the rent under subsection (1), the court shall have regard to the rent payable under the terms of the current tenancy, but otherwise the provisions of section sixteen shall apply to the determination as they would apply to the determination of rent under that section. See Order 4 and Rule 5.02 (2) of the Supreme Court (General Civil Procedure) Rules 2015 for more information. At the hearing below in the *Supreme Court/Court of Appeal, the [name of party] will apply for     3.    This notice is given under the provisions of section 21 (2) (a) of the Landlord and Tenant (Business Premises) Act. 9. 2. Notice of originating motion. In an effort not to render the appeal nugatory, in the event that the appeal succeeds, the Court will order a stay of proceedings. $91. However, there is an exception in arbitration proceedings where a party can move the High Court for interim relief before filing a statement of case. The Local Courts are courts that administer customary law, usually restricted to traditional disputes. The Distillers Co. (Biochemicals) Ltd v. Times Newspaper Ltd [1975] Q.B. (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.”. An expert is one who connotes receipt of formal training and qualification, but this is not always the case. Order X Rule 23 of the High Court Rules provides for service of court process issued by the English court on a person/entity residing in Zambia. 11.6      What are the major alternative dispute resolution institutions in your jurisdiction?             In this paragraph the reference to a prohibition of use for business purposes does not include a prohibition of use for the purposes of a specified business, or of use for purposes of any but a specified business; (f)         premises comprised in a tenancy granted by reason that the tenant was the holder of an office, appointment or employment from the grantor of the tenancy and continuing only so long as the tenant holds such office, appointment or employment, or terminable by the grantor on the tenant's ceasing to hold it, or coming to an end at a time fixed by reference to the time at which the tenant ceases to hold it; (g)        premises comprised in a tenancy granted for a term certain not exceeding three months, unless-, (i)         the tenancy contains provisions for renewing the term or for extending it beyond three months from its beginning; or. 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. 7.1        What are the basic rules of disclosure in civil proceedings in your jurisdiction? 13.    An application by a tenant under section twenty-eight of the Act to the court for determination of rent shall be supported by affidavit. 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.     4.    This request is made under the provisions of section 6 of the Landlord and Tenant (Business Premises) Act. A witness who has been called to give evidence before the court shall adduce such evidence viva voce (word of mouth). 18 OF 1981) [1981] ZMSC 15, Silungwe CJ held as follows: “Although in my judgment the appellant should lose this appeal, I would not condemn him in costs because he has raised a constitutional point of public importance, concerning interpretation of Art. Any other civil court practice rules issued after 1999 in England invariably do not apply to Zambia unless they relate to matrimonial causes. The legacy of English law has its roots in the British colonial era when Northern Rhodesia, now present-day Zambia, was a protected territory of Britain. 4 of 1977. Separate pieces of legislation provide for the establishment of the various courts, while the procedure for each court is promulgated by way of statutory instruments usually issued under the hand of the Chief Justice. An appeal is the hearing of the matter on the record. Compensation where order for new tenancy precluded on certain grounds. 469 at 471). Arbitral awards are enforceable, as are judgments. (a)        providing for matters of procedure under this Act; (b)        prescribing (where proceedings are commenced in court under this Act) the manner in which a tenant may, notwithstanding any contractual obligation, elect to pay to the court rent due to his landlord; the manner in which the rent so paid may be claimed from the court by the landlord or, if not so claimed, may be disposed of by the court; and the amount of commission which the court may deduct from rent so paid to it; and. 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. However, according to Order 24 Rule 5 (15) of the Rules of the Supreme Court (the White Book) 1999 Edition, Volume 1, information obtained by an advocate from his client with a view of giving his client legal advice is not privileged, unless obtained with a view to contemplated or existing litigation. 3.4        Can the pleadings be amended? If you are not the owner of the fee simple, I hereby require you to state to the best of your knowledge and belief-. 6.2        Do the courts in your jurisdiction have any particular case management powers? This is provided under Order 17 of the High Court Rules. (b)        whether his tenancy has effect subject to any sub-tenancy on which his tenancy is immediately expectant and, if so, what premises are comprised in the sub-tenancy, for what term it has effect (or, if it is terminable by notice, by what notice it can be terminated), what is the rent payable thereunder, who is the sub-tenant, and (to the best of his knowledge and belief) whether the sub-tenant is in occupation of the premises or of part of the premises comprised in the sub-tenancy and, if not, what is the sub-tenant's address. The pleadings must be concise and evidence is not permitted to be pleaded. Zambia’s legal system is based on the English legal system. (0.8, r.3). 10.1      Are there any formal mechanisms in your jurisdiction by which parties are encouraged to settle claims or which facilitate the settlement process? CHAPTER 193 THE LANDLORD AND TENANT (BUSINESS PREMISES) ACTCHAPTER 193, THE LANDLORD AND TENANT (BUSINESS PREMISES) ACT,   4.          Continuation of tenancies to which this Act applies and grant of new tenancies,   5.          Termination of tenancy by landlord,   6.          Tenant's request for a new tenancy,   7.          Rent while tenancy continues by virtue of section 4,   8.          Termination by tenant of tenancy for fixed term,   9.          Renewal of tenancies by agreement, 10.          Order by court for grant of a new tenancy, 11.          Opposition by landlord to application for new tenancy, 12.          Dismissal of application for new tenancy where landlord successfully opposes, 13.          Grant of new tenancy in some cases where section 11 (1) (f) applies, 14.          Property to be comprised in new tenancy, 15.          Duration of new tenancy, 16.          Rent under new tenancy, 17.          Other terms of new tenancy, 18.          Carrying out of order for new tenancy, 19.          Compensation where order for new tenancy precluded on certain grounds, 20.          Restrictions on agreements excluding provisions of this Act, 21.          Duty of tenants and landlords of business premises to give information to each other, 22.          Compensation for possession obtained by misrepresentation, 23.          Interim continuation of tenancies pending determination by court, 24.          Provisions as to mortgages in possession, 28.          Determination of rent in respect of tenancies commencing on or after 1st January, 1972. 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. (2) A writ of summons which is not accompanied by the documents listed under sub-rule (1) shall not be accepted.”. However, aspects of formal qualifications or many years of service are important and not admissibility of the evidence. For example, are there any rights of appeal from arbitration awards and expert determination decisions, are there any sanctions for refusing to mediate, and do settlement agreements reached at mediation need to be sanctioned by the court? 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. (4)  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. The procedure to stay proceedings is available in the court’s inherent jurisdiction. $182. Before a party can issue originating process against an intended defendant residing outside of Zambia, it is incumbent on the intended Plaintiff to first seek leave of the court to issue and serve originating process outside jurisdiction on the intended defendant. For example, a computer database which forms part of the business records of a company is, in so far as it contains information capable of being retrieved and converted into readable form, a “document” for the purposes of Order 24 and is therefore susceptible to discovery. Giga-fren [ 3 ] The original Notice of Motion claims immunity over 23 documents, all of which are found in Exhibit R-11.5, the Government's 'Fresh as Amended Privileged Document List' of December 16, 1999. 3. For all intents and purposes, the Order currently applicable is Order X Rule 23. 1.5        What are the costs of civil court proceedings in your jurisdiction? 58 of 2020 of the High Court (Amendment) Rules, 2020 now provides for pre-action disclosure. (a)        the parties to the application have agreed on the subject, period and terms of the new tenancy; (b)        the owner of any reversionary interest in the property consents thereto; and. These are referred to as third-party proceedings. 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