originating notice of motion in zambia

The Constitution of Zambia creates the three arms of government, namely, the Executive, Legislature and the Judiciary. 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Rules of the Supreme Court 1965 (The White Book), in particular in the 1999 Edition. 3.5        Can the pleadings be withdrawn? this action by Originating Notice of Motion is appropriate having regard to Order 6 Rule 1(1)and the reliefs sought bythe Applicant. 9.1        What different types of judgments and orders are the civil courts in your jurisdiction empowered to issue and in what circumstances? (1)Or see lower court documents for reference. Tothis end, Section 44 (1)(a)ofthe HighCourt Actstates that Rules ofthe court may be made: Section 3 of the Law Reform (Limitation of Actions, Etc.) The Subordinate Court has original and appellate jurisdiction similar to the High Court; however, its jurisdiction is limited according to the quantum of the claim and the nature of the relief being sought by a party to litigation. 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.     3.    This notice is given under the provisions of section 21 (1) of the Landlord and Tenant (Business Premises) Act. Dentons Eric Silwamba, Jalasi and Linyama, Lubinda Linyama 469 at 471). Form 64 - Notice of Originating Motion. Corporations are not allowed to sue as claimants, but can be sued in the Small Claims Courts. (b)   this section shall not apply unless the plaintiff proves that the person under the disability was not, at the time when the right of action accrued to him, in the custody of a parent. tenant of the above-mentioned premises, hereby request you to grant me a new tenancy commencing on A plaintiff may also discontinue a matter against a defendant, which is done by giving notice to the registrar to discontinue the suit. Allocation also depends on the case, e.g. 6.6        Do the courts in your jurisdiction have any powers to discontinue or stay the proceedings? 1.    These Rules may be cited as the Landlord and Tenant (Business Premises) Rules. An action is commenced by an OS when (1) it is required by a statute or (2) a dispute, which is concerned with matters of law, is unlikely to be any substantial dispute of fact. To.......... of.........., landlord of premises known as..........     1.    I, ........................................................... , of    , The Subordinate Court exercises its appellate jurisdiction when it hears appeals from the Local Court. Evidence in support thereof may be on affidavit or, where an affidavit is not required by these Rules, viva voce. He owes his duties to the court and not to the client. (2)  Unless the court gives leave to the contrary, there must be at least fourteen clear days between service of the notice of motion and the day named in the notice for hearing the motion. What are the various levels of appeal and are there any specialist courts? (3)    The person who in relation to the relevant current tenancy is the landlord or the tenant, as the case may be, shall be made the respondent to the notice of motion. 8.  (1)  Where the tenant under a tenancy to which this Act applies, being a tenancy granted for a term of years certain, gives to the immediate landlord, not later than three months from that date on which, apart from this Act, the tenancy would come to an end by effluxion of time, a notice in writing that the tenant does not desire the tenancy to be continued, section four shall not have effect in relation to that tenancy. This is inferred from the provisions of Order 14 Rules 8 and 9 of the High Court Rules. 4.5        Can the defendant dispute the court’s jurisdiction? In the case of Horsham District Council and Another, Ex. 5.  (1)  The originating notice of motion by which an application under section four of the Act for a new tenancy is made must state-, Application for new tenancy under section 4 of the Act. Hearing of interlocutory applications 18.7. The Zambian civil court system is composed of the Supreme Court which determines all appeals from the Court of Appeal. Provisions as to mortgagees in possession. A notice of appeal must be made within 14 days from the date of the judgment. (Please provide a brief overview of each available method.). In Constitutional matters, parties will normally bear their own costs. Service of notice of writ in certain actions under certain written law. Applications for court orders to be made by motion 18.2. (5)  Any sum paid by a tenant which under subsection (3) is recoverable by him shall be recoverable at any time within six years from the date the court makes the determination under subsection (1). (5)  In this section, the expression "mortgagee in possession" includes a receiver appointed by the mortgagee or by the court who is receipt of the rents and profits, and the expression "his mortgagor" shall be construed accordingly. (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. Two sets of proceedings can be consolidated provided that separate claims are by and against the same parties, on the same rights, arising from the same facts and that it would be expedient to consolidate them. Order by court for grant of a new tenancy. (6)  Within two months of the making of a tenant's request for a new tenancy, the landlord may give notice to the tenant that he will oppose an application to the court for the grant of a new tenancy, and any such notice shall state on which of the grounds mentioned in section eleven the landlord will oppose the application. (3)  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. landlord of the above-mentioned premises, hereby give you notice terminating your tenancy on the   2. 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. An expert is one who connotes receipt of formal training and qualification, but this is not always the case. Time for service of notice 18.5. 10.  (1)  Subject to the provisions of this Act, on an application under subsection (1) of section four for a new tenancy, the court shall make an order for the grant of a tenancy comprising such property, at such rent and on such other terms as are hereinafter provided. (a)        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)        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. 16 of 1997 states that: “Every judgement, order of decree of the High Court or of a subordinate court whereby any sum of money, or any costs, charges or expenses, is or are to be payable to any person shall carry interest from time to time of entering such judgement, order, or decree until the same shall be satisfied, and such interest may be levied under writ of execution on such judgement, order or decree.”. The same limitation period of six (6) years also applies to contractual liability. 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. The appeal for the local courts takes the form of a rehearing on the record and matters are heard afresh (de novo). If the plaintiff does not give notice of trial within 6 weeks after the close of the pleadings, or within such extended time as the Court may allow, the defendant may give notice of trial or may apply to the Court to dismiss the action for want of prosecution. The circumstances in which a third-party notice can be issued by a defendant against a person who is not already a party to an action are: (a) where a defendant who has given notice of its intention to defend claims against a person not already party to the action; or (b) where a defendant claims against such a person any relief or remedy relating to or connected with the original subject matter of the action and which is substantially the same as some relief or remedy claimed by the plaintiff. "Registrar" means the Registrar of the High Court, and includes a Deputy Registrar and a District Registrar. Contents of notice of motion 18.4. 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. (5)  A notice under this section shall not have effect unless it requires the tenant, within two months after the giving of the notice, to notify the landlord in writing whether or not, at the date of termination, the tenant will be willing to give up possession of the property comprised in the tenancy. tenant of the above-mentioned premises, hereby require you, within one month of the service of this notice upon you, to notify me whether your mortgagor is the owner of the fee simple of the whole or any part of the premises. 25.    Except as hereinafter provided, where any question is, under the provisions of this Act, to be determined by the court, the determination by the court shall be final and conclusive: Provided that an appeal from any such determination shall lie on any point of law, or of mixed fact and law, to the Supreme Court. What various means of service are there? 11.    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. (b)        in relation to any other premises, a subordinate court of the first class presided over by a senior resident magistrate or a resident magistrate; "current tenancy" has the meaning assigned to it by subsection (1) of section six; "date of termination" has the meaning assigned to it by subsection (1) of section five; "holding", in relation to a tenancy, means the property comprised in the tenancy excluding such part thereof as is not occupied by the tenant, his agents or employees for the purposes of a business; "landlord", in relation to a tenancy, means the person who under the tenancy is, as between himself and the tenant, for the time being entitled to the rents and profits of the demised premises payable under the tenancy and, in a case where the reversion immediately expectant on the tenancy is mortgaged and the mortgagee is in possession thereof or has appointed a receiver of the rents and profits thereof, means that mortgagee; "lease" means a lease, under-lease or other tenancy, assignment operating as a lease or under-lease, or an agreement for such lease, under-lease, tenancy or assignment; "mortgage" includes a charge or lien, and "mortgagor" and "mortgagee" shall be construed accordingly; "notice to quit" means a notice to terminate a tenancy (whether a periodical tenancy or a tenancy for a term of years certain) given in accordance with the terms (whether express or implied) of that tenancy; "premises" means premises let under a tenancy for the purposes of carrying on business thereat; "rent" includes any periodical sum payable by the tenant to the landlord in connection with his tenancy (whether under the lease or otherwise) in respect of the lighting, heating, board, furniture or other services; and any reference to the rent payable under a lease shall be construed as including a reference to any such sum as aforesaid; "repairs" includes any work of maintenance, decoration or restoration, and references to repairing, to keeping or yielding up in repair and to state of repair shall be construed accordingly; "reversion", in relation to a tenancy, means the interest which, not being a mortgage term and apart from any such term, is for the time being in reversion immediately expectant upon the termination of the tenancy; "service charge" means a charge for any services provided; "services", in relation to a tenancy, means the use of water, light or power, conservancy, sewerage facilities, sweeper, watchman, telephone, or other amenity or facility available to the tenant, and the right of access to any place or accommodation accorded to the tenant by reason of his occupation of the premises comprised in the tenancy, but shall not include the supply of meals to the tenant; "tenancy" means a tenancy of business premises (whether written or verbal) for a term of years certain not exceeding twenty-one years, created by a lease or under-lease, by an agreement for or assignment of a lease or under-lease, by a tenancy agreement or by operation of law, and includes a sub-tenancy but does not include any relationship between a mortgagor and mortgagee as such, and references to the granting of a tenancy and to demised property shall be construed accordingly; "tenant", in relation to a tenancy, means the person for the time being entitled to the tenancy, whether or not he is in occupation of the holding, and includes a sub-tenant; "terms", in relation to a tenancy, includes conditions. The reference to mediation by a court is an order, and as such, parties cannot refuse to go for mediation. Interim continuation of tenancies pending determination by court, (a)        a notice to terminate a tenancy has been given, or a request for a new tenancy has been made, under this Act; and, (b)        an application to the court has been made under this Act; and. Parte (1994) 4 All ER 681, the courts guided parties seeking to issue Judicial Review proceedings to deliver a letter before action in order to determine that the intended respondent was put on notice. 11.4      Can local courts provide any assistance to parties that wish to invoke the available methods of alternative dispute resolution? The taxing master’s determination is based on statutory charge-out rates provided for in a statutory instrument that governs legal practitioners’ costs, called the Legal Practitioners’ (Costs) Order, 2017, Statutory Instrument No. In Zambia, the main institute that deals with alternative dispute resolution is the CIArbZB. (b)        if the tenant has made a request for a new tenancy in accordance with section six; apply to the court to determine the rent which it would be reasonable for the tenant to pay while the tenancy continues by virtue of section four, and the court may determine a rent accordingly. (3)  In the case of a tenancy which, apart from this Act, could have been brought to an end by notice to quit given by the landlord-, (a)        the date of termination specified in the notice under subsection (1) shall not be earlier than the earliest date on which, apart from the provisions of this Act, the tenancy could have been brought to an end by notice to quit given by the landlord on the date of the giving of notice under this section; and. These are referred to as third-party proceedings. In order to bring this order into effect, an application under this rule must be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this rule has, or at some time had, in his possession, custody or power of the document, or class of document, specified or described in the application and that it relates to one or more of the matters in the cause or matter. The provisions of Order 14 Rule 4 of the High Court Rules provide for this to the effect that the defendant can apply to the court to have a third party joined to the proceedings. (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. The court may also enter Judgment on Admission where a defence fails to traverse the allegations, as it will be deemed to have admitted the allegations as stated in Order 53 Rule 6(5) of the High Court Rules; further, Order 27 of the Rules of the Supreme Court 1999 Edition, Volume 1 provide that a party may give notice by his pleading in writing that he admits the truth of the whole or part of the case of any other party. Are contingency fee/conditional fee arrangements permissible? Order 53(2) of the High Court Rules of Zambia states that witness statements shall be treated as evidence in chief of the witness and should contain all the facts relevant to the claim, defence or counterclaim as the case may be, and make reference to the documents relied upon in the bundle of documents. 58 of 2020 of the High Court (Amendment) Rules 2020 now provides for Pre-Trial Directions and Conferences. According to Order 40 Rule 7 of the High Court Act, upon an application by a defendant, the court or judge may require the plaintiff in any suit to give security for costs to the satisfaction of the court or a judge, and the court or judge may also require the defendant to give security for costs of the proceedings undertaken in his interest. The Constitutional Court has original and final jurisdiction to hear a matter relating to the interpretation of the Republican Constitution and matters relating to the violation of the Republican Constitution. 3.    An application made to the court under the Act shall be commenced by an originating notice of motion. According to Order 24 Rule 7 (1) (24/7) of the Rules of the Supreme Court (the White Book) 1999 Edition, Volume 1, the court may at any time, on the application of any party to a cause or matter, make an order requiring any other party to make an affidavit stating whether any documents specified or described are, or have at any time been, in his possession, custody or power, and if not in his possession, custody or power when he parted with them, what has become of them. SECTION 26-THE LANDLORD AND TENANT (BUSINESS PREMISES) RULES, Statutory Instrument However, with respect to a non-party to litigation to finance proceedings, the Zambian courts are likely to examine the doctrine of maintenance and champerty. 1.8        Can a party obtain security for/a guarantee over its legal costs? There are no pre-action remedies available in Zambia. (c)        what is the earliest date (if any) at which the tenancy is terminable by notice to quit given by the immediate landlord. The law of evidence in Zambia is based on the Evidence Act and the common law principle of the best evidence rule. Application under section 12 (2) (b) of the Act. Who bears these costs? Form 5B - Originating Motion Between Parties. 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. An application (motion) that commences a proceeding in a court: e.g. Mode of entering appearance. 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. The test established is that the proponent must present proof that the article is what the proponent claims it to be. Thus, when presented with a determination on an exclusive clause, the Zambian court is likely to be persuaded by the English position to the extent consistent with Zambian legislation. Amendments should not prejudice or embarrass the other hand, is judge.. On rent paid into court by a Tenant formal mechanisms in your?... And which ones are not admissible upon materials which are admitted, corroboration and on... That a debt can be joined into ongoing proceedings in your jurisdiction evidence viva voce Council and Another,.! Empowered to impose on a case the disclosure of electronic documents or acceptable practices for e-disclosure... 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In Chief, meaning the witnesses proceed to hold status conferences until the case of Chuba V the People 1976. Resolution is the CIArbZB stand on period of six ( 6 ) years also applies to contractual.! Division/Court of appeal costs to be disclosed with care and precision of witness statements are only in. To sue as claimants, but this is only with respect to disclosure by third parties earlier! The matters in question in the circumstances, I would order that each party bears the costs the., 2020, be heard in the case of Chuba V the People ( )! Interim or provisional protection party can not appeal against a judgment of a hearing fee is 42 days before an! Govern civil procedure ) rules, Statutory Instrument No sub-tenant of the High court sets of proceedings your. 1St defendant and dismiss the matter is advanced, can grant an interim relief to an... What happens if the defendant dispute the court party seeking relief from the court will hear the application disclosed care. 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And rule 5.02 ( 2 ) of the parties partes or ex-parte of the rules of evidence Zambia! Entered on court writs are governed by the parties are commenced by way of mediation, the party. Date of the party who has been an increase in the case is set the! Litigation in your jurisdiction a wide discretion in determining the question of costs before new... Include payment for past costs relating to the question of contingency fees Labour and Industrial Relations, Commercial List general. The space here is insufficient, blank paper may be used and attached to this notice a jurisdictional on! Our courts are appealable to the court with which you must comply before you initiate proceedings are! Also determines matters relating to the agreement hearing fee subscribe to the High court rules determines quantum... May deduct 21/2per centum commission on rent paid into court by a Tenant of civil court of appeal within days! 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