Study skills Essentially you will be taking control of your learning environment.

As a
consequence, you will need to consider performance issues related to time
management, goal setting, stress management, etc. Perhaps you will also
need to reacquaint yourself in other areas such as essay planning, coping
with exams and using the web as a learning resource.
Your most significant considerations will be time and space i.e. the time
you dedicate to your learning and the environment in which you engage in
that learning.

We recommend that you take time now—before starting your self-study—

to familiarize yourself with these issues. There are a number of excellent
resources on the web. A few suggested links are:

 [Link]
The “How to study” web site is dedicated to study skills resources. You
will find links to study preparation (a list of nine essentials for a good
study place), taking notes, strategies for reading text books, using
reference sources, test anxiety.

 [Link]
This is the web site of the Virginia Tech, Division of Student Affairs.
You will find links to time scheduling (including a “where does time
go?” link), a study skill checklist, basic concentration techniques,
control of the study environment, note taking, how to read essays for
analysis, memory skills (“remembering”).

 [Link]
Another “How to study” web site with useful links to time management,
efficient reading, questioning/listening/observing skills, getting the
most out of doing (“hands-on” learning), memory building, tips for
staying motivated, developing a learning plan.
The above links are our suggestions to start you on your way. At the
time of writing these web links were active. If you want to look for
more go to [Link] and type “self-study basics”, “self-study
tips”, “self-study skills” or similar.

1
THE LEGAL PROCESS

This course is tailored to give the reader the basic knowledge of the legal system in Zambia. It introduces
the reader to an introduction of the law. The course legal process gives one an appreciation of What the law
is; Where it comes from; Who administers the law and how it is administered.
The reader will appreciate the course more when read together with other branches of the law, however,
note from the on set that legal process is very useful in the field of law as everyone is expected to operate
within the legal system of a given state in which they want to operate in. There will be no hearing of a
matter where the legal process of the land is not known as the law always demands that procedure is
followed to the latter- this is the legal process of the land.

Introduction
Law in the widest sense means a rule to which actions conform or should conform. Law therefore suggests
a real or desired conformity. One can therefore speak loosely of the law of science, economics, logic,
psychology, etc., as well as of the laws of nations.

This work is concerned with the law in the strict sense of the word, that is: rules of conduct imposed by a
state upon its members and enforced by the land, the object of which is to enforce certain standards of
behavior among citizens in the interest of peace and good order.

Zambia is a common law country. It has adopted mainly the English Common Law System. It has also
embraced principles of other World Legal systems such as the American Legal System which has a Written
Constitution in place as its Supreme law; the same applies to Zambia to date.

Zambia as a country gained its independence on the 24 th of October, 1964, it then became an independent
state- a sovereign state. Like any other sovereign state, it is governed by its own laws. Hence the
importance of this course, the Zambian Legal Process, so that it equips one with the knowledge of the law
administered in Zambia, who administers, and how it is administered.

2
UNIT ONE: THE NATURE OF LAW

Introduction
This unit provides for the nature of law.
Learning Outcomes
After completing this unit a student will be able to:

 know what law is

 understand the objectives / functions of law in society.
 Outline the difference between Law of morality and Law of Justice.

Definition…
Law is a system of rules recognized;
Law is something which regulates the conduct of persons within the state and enforced by institutions
within the state;
Systems directed at certain conduct;
Therefore, we have: systems; command; action
On the other hand, we have: conduct; persons; state; enforceable; courts.
Law is said to have no definite definition. It is often exercised in concepts like law, morality, religion,
economy and justice. However, it is within the determination of the people to decide how they want to be
governed, it must be based on law.
Law is defined by 2 (two) scholars- Hobbes and G. Williams as;
“A body of principles recognized and enforced by the state in view of applying justice.
The law of a particular state is the body of rules designed to regulate human conduct within that state”.
Broadly speaking, there are three types of rules:
i. Rules which forbid certain types of behavior under threat of penalty
ii. Rules which require people to compensate others whom they injure in certain ways
iii. Rules which specify what must be done to order certain types of human activity, e.g. to form a
company, to marry, or to make a Will.
These rules are made, and the basic role of the courts is to interpret these rules, decide whether they have
been broken and pass sentence or make an award of compensation.

3
THE FUNCTION OF LAW IN SOCIETY

The Nature and Functions of Law in Society

The institution of law has a bearing on all sectors of life and ultimately, is seen in numerous perspectives
and the roles of law are defined relatively to the needs of the people.

A crisis in society challenges the law more than any other social activity. Law is concerned with politics,
economics, social life, ethics, etc. as an instrument, it gives form and order. It also gives form to three
fundamental situations which can be threatened in times of crisis. In giving these forms and order, one will
discern in these the three functions of law

i. Law must ensure stability and conditions necessary for stability in times of crisis a challenge is
posed between the need for stability and social change. The inability of law to maintain stability
will result in the law giving force to other forces stronger than itself.

The law itself must not be dormant, static, it must be responsive to social changes, otherwise,
there is dislocation of social order.

ii. Law is concerned with giving form to specific relations. Form is of great importance in legal
training precedence. The historical rules of law are an important technique.
iii. Law’s function is the desire for security from disorder. There cannot be security without law.
One of the major functions of law is to assure security from disorder.

RADBRUCH says on the functions of law in society – “ALL great political changes were
prepared or accompanied by legal philosophies. At the beginning there was legal philosophy, at
the end there was revolution. However, law must be responsive to society. When ideals are
emerging from political changes, they must be formulated into law. The law must be responsive
to the needs of a developing country so that law is seen as a tool of social change.”

In summary, the law fosters and maintains public order. It provides for a rationale, peaceful and conclusive
method of settling disputes in society and also suppresses or oppresses deviant behavior. (N.B. human
beings are a terrible creation; you can cage them but not their mind).

Law facilitates comparative actions- it provides a framework within which you can do all sorts of things.

Law communicates and reinforces social values.

Law constitutes and regulates the principle organs of society (through the constitution).
4
The law is an instrument of local control through various law disciplines.

Law has limits

i. The law has limited social functions

- You want love, health, etc. law will not give you that
- Law can not give you a partner, will not give you money, a degree etc.
ii. The law has limited effects. Why? Because the language of law is obscure ( law is not always
understood, also the multiplicity of languages)

LAW AND MORALITY

The law which is enforced by the courts must be distinguished from what is sometimes referred to as
‘natural’ or ‘moral’ law. In many cases the rule of law and morality clearly coincide. For example, if a
person murders another, this offends both law and morality. The state will therefore punish the offender.

Sometimes however, the rules of law and morality are not the same. For example, homosexual behaviour in
private between two consenting adults is not illegal although many people would regard it as a breach of
moral law.

The term ‘natural law’ is sometimes used to refer to rules which although not enacted are accepted as part
of the legal system. For example, the right of both sides to be heard (or to remain silent), and the principle
that an accused person is innocent until proven guilty.

A characteristic of morality is moral pressure which supports the observance of morality and respect of
rules is very central to observance.

However, two conditions must be satisfied for any moral rule, that is, Rationality and Generality. Moral
rules must have a Rational basis and not fanaticism and they must be General and not selective in
application. This brings morality close to law because even law must be generally applicable for it to be
just.

LAW AND JUSTICE

The basic aim of law is the attainment of justice in society. However, in some situations, the degree of
justice hoped for is not achieved. e.g

5
 a. Compensation for injuries usually depends on proving that someone else is at fault. If a
person is injured due to his own fault or in a ‘pure’ accident where no – one is at fault, he
will not receive compensation unless he is insured. This inequality is as a result of the rules
on negligence liability.
b. The rules regarding mistake and misrepresentation in the formation of a contract often
operate to determine which of the two innocent parties must bear all of the loss. The loss is
not divided equally.
c. Sentencing policies applied by magistrates in different areas often result in substantially
different sentences for very similar offences.

It would therefore be an oversimplification to say that most people obey the law because it is Just, or
because it coincides with their view of which is morally correct. Law is also closely related to force and
authority and these relationships would have to be examined in order to properly explain the intrinsic
nature of law, and to find out why most people obey the law.

An alternative to explaining law is by reference to its intrinsic nature is to explain it by reference to what it
does. In most general terms, law classifies human behavior. Human beings are capable of an infinite variety
of behavior. Some conduct is clearly acceptable, whereas other conduct is obviously wrong. In between
there are numerous examples of human acts or omissions which some people would regard as acceptable,
but others would regard as wrong, for example, if a man were to dress in public as a woman. The law can
specify with absolute precision some activities that are regarded as unacceptable, for example, driving at
more that 70 kilometer per hour., but it would be impossible to list every example of acceptable and
unacceptable conduct.

Nevertheless, if someone does something that is legally challenged by another person or by the state, it will
therefore classify any human conduct (even things that no – one has ever done before). Two basic
categories, that is, ‘right’ or ‘wrong’- i.e. in criminal cases a verdict of ‘ guilty’ or ‘ not guilty’ and in civil
cases a finding for the plaintiff or a finding for the defendant.

Law is therefore, the most ambitious and complex classification system devised by man.

6
 Activity 1.0

 What is Law?

 Outline all the functions of law in society.

 Clearly explain the difference between law and morality and law
and Justice.

Unit Summary

In this unit you have learnt about what law in society and the difference between law and morality and law
and Justice.

7
UNIT TWO: CLASSIFICATION OF LAW

Introduction
This unit discusses the classification of law both under international law and national law.

Learning Outcomes
After completing this unit you will be able to:

 Outline the classification of law.

 Demonstrate an understanding of the difference between Civil and Criminal
law.

NATIONAL AND INTERNATIONAL LAW

i. INTERNATIONAL LAW

Under international law, we have private and public law.

- Private international law covers relations between individuals
- Public international law, regulates between states, unilateral organizations etc.

ii. NATIONAL LAW

Under the National Law, we have; procedural and substantive law.

- Procedural law looks at rules of procedure which govern the way in which the substantive law
is enforced. It includes the rules of evidence, civil and criminal procedure.
- Substantive law is the content of statutes, regulations and judicial decisions that prescribe
behavior set out and duties. e.g, this includes family law, criminal law, and constitutional law.
It can further be divided into public and private law.
- Public law; deals with the state and it includes constitutional, criminal and administrative
law.
- Private law; governs relations between individuals. Includes; contracts, tort, property,
family law, etc.

The majority of laws talked about fall under civil law which is contrasted with criminal law.
8
CIVIL AND CRIMINAL LAW

There are many ways to classify law, the most fundamental distinction being that drawn between criminal
and civil law.

i) Criminal law

a). A crime is regarded as a wrong done to the state. Prosecutions are usually commenced by the state,
although they may be brought by a private citizen. If the prosecution is successful, the accused person
(the defendant) is liable to punishment. Some crimes for example, rape, have specific victims. Others
for example, treason or speeding can be committed without causing loss to any particular person. If
there is a victim he will not usually have a say in whether or not a prosecution is brought , nor will he
benefit from a conviction, since fines are payable to the state.

b). Criminal and civil hearings take place in different standards of proof. In criminal trial the prosecution
must prove the accused’s guilt beyond reasonable doubt. In a civil action, the plaintiff must prove his
case on the balance of probability.

ii). Civil Law

Civil actions may be commenced by any person who seeks compensation for a loss which he has
suffered. If the plaintiff is successful he will usually be awarded damages. The damages must be paid by
the defendant. Their purpose is to compensate the plaintiff for his loss rather than to punish the
defendant. There are many categories of civil law, for example:

- Contract
- Tort
- Property law
- Company
- Commercial
- Employment
- Family

The distinction between civil and criminal wrong is not found in the nature of the act itself, but in legal
consequences that follow it. Thus if a taxi driver crashes he may commit:

9
 i. A beach of contract, that is, failure to deliver the passenger to his destination
ii. A tort is negligence if he causes damages to any person or property.
iii. A crime for example dangerous driving,

In some situations, the fact will therefore indicate both criminal and civil offence and action. In such cases
the victim will not be able to have actions heard in the same court. He will have to start a civil action
separate from any prosecution brought by the state.

The title of cases.

 Prosecutions of criminal offences, known as indictments, are brought in the name of the State. The
case will then be known as, for example, The People V. Patrick Sakala.
 The parties’ names are used, the plaintiff’s name being first, for example, ‘Rylands V. Fletcher.,
This being a civil matter has traditionally been pronounced as ‘Rylands and Fletcher.’
 Sometimes there will be neither plaintiff nor a defendant, for example, if an application has been
made to the court to interpret Browns Will, the case would be known as Re Brown.
 Appeal cases. When party appeals, he is called the Appellant, and the other party is the
Respondent. Since the appellant’s name is always placed first, when the defendant appeals the
name of the case will be reversed, thus, Patrick Zulu V. David Banda in the High court, it will be
David Banda v. Patrick Sakala in the Supreme Court.

Activity 2.0

 Outline the classifications of law under international law.

 Outline the classification of law under National Law.

 Discuss the difference between Civil and Criminal Law.

10

Unit Summary
 In

 In this unit you have learnt about the different classification available under International and
National Law. You have also learnt about the difference between civil and criminal law.

11
UNIT THREE: SOURCES OF LAW

Introduction
This unit provides for the sources of law.

Learning Outcomes
After completing this unit you will be able to:

 Demonstrate an understanding of the sources of law,

Sources of law can be said to be primary and secondary

Primary sources of law are:

1. Legislation. This is a general term which constitutes the following;

a) Acts of Parliament

b) Statutory Instruments

c) Bye laws.

A constitution is law, although can also be classified under statutes. The pieces of legislation listed
above must be in line with the constitution. They must be consistent with the constitution.

2. Case law

Precedents. Cases set out the doctrine of precedents, that is, decisions of former cases bind decisions of
later cases. The part that is binding is the called the ratio decidendi. This goes into record as Case
Law.

*Side comments made by the Judge: the Obiter Dictum (singular) has no relevance to the case. They
however have an effect that has an influence on the law.

The doctrine does not bind itself, that is, the Supreme Court, but on the lower courts. The reason for this
is that it can give itself another opportunity to revisit earlier decisions.

12
 The Supreme Court is not a slave of precedents (the Supreme Court has to wait, it can not initiate what
is wrong on its own) it has to wait for a case to come before it.

The Bill Attainder: They deal in Legislative judgements, e.g. the law forgetting certain individuals etc. This
is meant to redress genuine wrong principles, to correct the law, e.g., when the Public Order Act was
challenged.

ii. Secondary sources of law

- Books
- Academicians
- Other sources such as customary laws, etc.

Activity 3.0

 Outline all the sources of law in Zambia

Unit Summary

In this unit you have learnt about the sources of law.

13
UNIT FOUR: ESSENTIALS OF LAW: ESSENTIAL QUALITIES OF LAW

Introduction
This unit provides essential qualities of law.
Learning Outcomes
After completing this unit you will be able to:

 Outline the essential qualities of law.

Essential qualifies of law.

i. Binding (obligatory) not necessarily punishment (not always)

ii. Law is General. People application: it must generate its source from the people it will serve
iii. Authority; this points to the source of power, e.g. statutory, customary

Law is obeyed. People obey the law

- For fear
- Respect for other people
- Sympathy
- Also laziness

From the law perspective, we have analyzed that law is everywhere and that it is also persuasive.

Law is general in the sense that it’s not addressed to a specific individual. It is addressed to a community or
a country as a whole. It does not enjoy single actions – addresses a specific community.

Ex- post facto legislation: law that is enacted after an event are not accepted because they target specific
individuals

Law appeals to force. Every law that is passed is meant to be enforced. Police are the basic enforcers of the
law; they do two (2) things;

i. They apply cohesive force; they proceed to arrest you, take you to court, if convicted, you are
imprisoned.
14
ii. They employ preventive actions- with community’s emphasis on that.

Before the law is enforced, the people will obey it.

National law

These can be said to be a collection of rules, object of which is to maintain and preserve order in a stable,
and often understood as positive law.

Rules of national law are binding, observed and enforceable. This regards to all the inhabitants of the
state while other rules are neither universally binding nor enforceable on all the inhabitants of the state.
This is what basically distinguishes national law from other laws such as customary laws or morals.

The idea of punishment is there to basically make people not necessarily break the law /rules.

The concept of morality helps to make good laws. This concept is a component of national law.

Laws are passed to regulate conduct. On other hand, morality can be damaging to the law. Once you have
the national law, it can be changed. This is basically due to the fact that as time goes on, certain things
change and automatically, certain laws must change.

Activity 4.0

 Outline the essential qualities of law.

Unit Summary

In this unit you have learnt about the essential qualities of law.

UNIT FIVE: PURPOSES AND ATTRIBUTES OF A GOOD LEGAL SYSTEM

15
Introduction

This unit provides for purposes and attributes of a good legal system.

Learning Outcomes
After completing this unit you will be able to:

 Cite all the attributes of a good legal system.

1. CERTAINTY.

The law must be relatively certain. It should be clear in the way it defines rights and responsibilities
and the people should be able to know in advance what the law is. It is nearly everywhere agreed
that a successful, modern legal system must make the law relatively certain. One of the functions is
more often, punishment for indicated activity. Thus, the purpose of the law of theft is to deter
certain behavior by promising to punish it. If the behavior in question is ambiguous, however, it will
obviously be difficult to regulate it, for no one will know exactly what will follow from ones acts.

The statement of a requirement of certainty is easy to make and accept. The ramification of this ,
though are enormously complex and will occupy much of our time in the materials following, as for
instance with respect to the nature of the doctrine of precedent in the common law, or the role and
future of ‘customary law’ in Africa. Certainty is a desirable attribute of law.

2. WRITTEN LAW

Law should be in a written form, but does not guarantee that it is going to be certain.

Unwritten laws tend to vary from one place to another and from one time to another. They can
almost never be safely found out in advance by persons concerned with the consequences of their
actions. Because of their ephemerical and remoteness, they are discouraged in modern societies in
favour of written laws. They are inconsistent.

16
 However, in many developing societies, written laws achieves very little by way of legal certainty
for many a population is not widely literate and already accustomed to reliance upon oral traditions
over several generations.

3. COMPREHENSIVE LAW
If a high degree of certainty is to be attained, the laws must be structured in a way that all potential
problems and disputes are covered by the law. The law should try to cover all possibilities.

4. SIMPLICITY
The law must be simple and straight forward so that people can easily understand the law and as to
attain certainty. They must be written and comprehensive so as to capture every possible
contingency. This has proven to be a challenge as not even lawyers themselves understand and
assimilate these laws. Due to huge volumes of these laws, much of it involves various shadings of
meaning and even self contradiction and inconsistency. Thus, it is not really very certain at all. The
need for legal simplicity often directly conflicts with other felt needs of a legal system.

5. UNDERSTANDABLE
The law must not only be written, comprehensive and simple. It must also be relatively
understandable to most of the people whom it is supposed to guide and regulate. The drafters of the
law must try as much as possible to use the language that would enable the reader understand the
law and its objectives.

6. ACCESSIBLE
The law must be accessible to the people. It should be in a document that people can access. This
demands for the creation of availability of law materials and people to interpret this law in a simple
understandable language, but Zambian law is quite inaccessible because it is expensive.

7. INEXPENSIVE
The entire law should be inexpensive. Every person must be able to afford it. However, in Zambia,
like in other developing nations, the legal systems are engaged in heated competition with other
institutions for financial subsidies drawn from public sources as well as private. Every kwacha spent
on legal education is denied to other educational needs; thus a good legal system in addition to its
other attributes listed above must also be cheap to maintain. This is impossible. The question is;

17
 what is the absolute minimum which the public and private economies can spare for the legal
system. This posses a constrain on the methods and processes of law within the system.

8. THOROUGH PROCEDURES
In the courts, each person must have a full day; the person should not be rushed. Every dispute must
be rationally and fairly resolved, thus the procedures devised for adjudication be thorough as well as
efficient. However, procedures devised and sources of law are highly complicated and expensive to
the detriment of other purposes of the law.
9. RAPID ADJUDICATION
The matter in the courts should be quick as possible, should not drag on and on. The need for rapid
as well as inexpensive resolution of disputes will operate as a significant restriction on the ability of
a legal system to provide for clarity and for accessible comprehensive source of law

10. FLEXIBILITY
The law should change because society also changes. Otherwise, it will become irrelevant because
the people will have moved beyond it. A successful legal system must often bend with the wind; it
must be sufficiently adaptable to accommodate new kinds of problems and it must be flexible
enough to adjust to changes in the needs and desires of those whom it serves.

Most often the need for flexibility runs into conflict with the need for certainty.

Certainty in law means that it must be capable of changing its course from the past, whenever
present conditions suggest the change.

Activity 5.0

 Clearly outline and briefly discuss all the attributes of a good legal
system.

18
Unit Summary

19
UNIT SIX: ACCCOUNTABILITY OF A LEGAL SYSTEM

Introduction

Learning Outcomes
After completing this unit you will be able to:

1. It should be accountable to the people.

2. The law should recognize society’s moral values, but it should not lose track of its purpose because its
responsibility is to achieve justice. The law tends to mainly collide with the moral values of society.

3. It must take into account the ideology of the society in which it operates. It must reflect the ideology that
drives that particular society. For example laws were tailored to meet the humanism concept that was
driving the state in the first republic. Also, the laws were changed to meet the capitalist state in the third
republic; hence we saw for instance, the amendments to the laws as regards privations being effected.

4. It must reflect the Political realities that prevail on the ground. But this does not mean that the law
should be driven by politicians- even politicians should be under the law.

5. The law should ensure fair and equal treatment. The value of law must at all times prevail. This is
difficult to implement in reality, therefore, the aim of the law is to strive to get there, that is, fairness
and equality.

*** Chibwe v. Chibwe SCZ Judgement No. 38 (2000)

The case started in the local court because they were married under customary law.

They wanted a divorce. The divorce was granted but the woman was given very little property. She
appealed to the Higher Court. The Supreme Court had this to say; “that we have observed in this case with
interest the dichotomy resulting from the application of unrecorded customary law against the background
of the changed environment of the macro economy with its ratification, the growth of the common law of
20
Zambia. With the changes in the social values, influenced by the international values received by Zambia
through its ratification of various international instruments, more or less creating to justice paradigms
results in some cases in gross disparities, bringing about inequality before the law contrary to our
constitutional provision, it is incumbent for all the courts to uphold the constitution.

Our court has provided that in Zambia, courts must invoke both the principles of equality and law co-
currently a point which some judicial officers at local courts and subordinates court levels fail to put into
practice.

We would like to point out to our justice system that all judicial officers are duty bound to be impartial
and fair to all parties, thus, involving the principle of equality before the law. The courts must also be
aligned to the well established principles of equity, giving reasoning for their decisions.

The customary law in Zambia is recognized by our constitution provided it is not repugnant to any written
law. The lower courts had failed to apply to the law of equality because of;
i. The failure of the courts to apply the principle of equality
ii. The court argues that the decision made was based on customary law. But courts must discard those
customary standards that are not up to international standards.”

The appellant was therefore given the property in equal proportion to the respondent. The property was
shared equally.

*** ZCCM V. Katalai & Chilombo SCZ # 1 (2001)

The respondents were members of a bowling club occupying a ZCCM club house. They sought to purchase
the house for the club and consulted the property superintendant at ZCCM as to how they could do so.
They advised them to register trustees under the Land (perpetual) Succession Act who would hold the
property on behalf of the club members, in the meantime, the 3 rd party successfully put in a bid for the
purchase of the same property and it was sold to him. The club members refused to vacate the premises
arguing that the property superintendant should have processed the purchase of the 3 rd party sued ZCCM
and their actions were consolidated into one case.

21
The high court ruled in favour of the club members. ZCCM appealed on the ground that the 3 rd person was
an innocent party for buying and was entitled to the house. In response, the club members emphasized the
public interest in the recreational facilities offered by the club house in the benefits to the community.

Ruling on the matter, Chief Justice stated that … “these are very strong moral arguments, however, the
legal position as we see it was not possible without proper innocent purchase for value. There would be no
justification to inflict injustice on the 3rd party in the name of justice for the respondent.”

Activity 6.0

Unit Summary

22
UNIT SEVEN: JUDICIAL PRECEDENTS

Introduction

Learning Outcomes
After completing this unit you will be able to:

The History of Judicial Systems

The doctrine of binding precedent did not become firmly established until the second half of the 19 th
century. In the common law courts, the former practices was to apply the declaration theory of common
law , i.e, the law was contained in the customs of the land, and judges merely declared what it was. Thus,
although Judges regarded precedents as persuasive, they did not consider them to be binding. Lord
Mansfield said this in Fisher V. Prince (1782),

“The reason and spirit of cases make law, not the letter of particular precedents.”

As time passed Judges paid more and more attention to previous decisions and in Mirehouse v. Rennel
(1833) Baron Parke said that notice must be taken of precedents. The court could not “reject them and
abandon all analogy to them.”

In the Court of Chancery there was no declaratory theory, the Judges merely tried to do justice in each
individual case. This system lacked certainty and criticism was strong. From about 1700 the court began to
pay increasingly greater respect to its previous decisions.

The modern doctrine of binding precedents is about 125 years old. Its present form is due to two factors.
Firstly, in 1865 a council was established by the Inns of Court and the law society to publish under
professional control the decisions of the Superior Courts. Prior to this private reports were published some
were good, others were unreliable, and many cases were not reported at all. Secondly, The Judicature Act
1873- 1875 established a clear court hierarchy. The doctrine of precedent depends for its operation, on the
fact that all courts stand in a definite relationship to one another.
23
An Outline of the Doctrine
Despite the inevitable tendency of Judges to create law, binding precedent is based on the view that it is not
the function of the Judge to make law but to decide cases in accordance with the existing rules. Two
requirements must be met if a precedent is to be binding:

a. It must be a ratio decidendi statement, and

b. The court must have a superior, or in some cases equal status to the court considering the statement
at a later date.

If these requirements are met, and the material facts as found are the same, the court is bound to apply the
rule of law stated in the earlier judgement.

The Ratio Decidendi

Judgements contain:

1. Findings of fact, both direct and inferential. An inferential finding of fact is the deduction drawn by
the judge from the direct or perceptible facts. Finding of facts are not binding. Thus even where the
direct facts appear to be the same as those of an earlier case, the judge need not draw the same
inference as that drawn in the earlier cases.
2. Statements of law. The judge will state the principles of law applicable to the case. Statements of
law applied to the legal problems raised by the facts as found upon which the decision is based as
known as ‘ratio decidendi’ statements. Other statements, not based on the fact as found, or which
do not provide the basis of the decision, are known as ‘obiter dicta’ statements. For the purpose of
precedent, the ratio decidendi, which literally means ‘reason for deciding’, is the vital element
which binds future judges.
3. The decision. From the point of view of the parties, this is the vital element since it determines their
right and liabilities in relation to the action, and prevents them from reopening the dispute.

Sometimes it is difficult to ascertain the ratio decidendi of a case. For example-

1. A statement intended by the Judge to be the ratio is not accepted by a subsequent court as the ratio,
however, his other reason are accepted.
2. In the courts of Appeal, different Judges or members of the court may reach the same decision, but
for different reasons.
24
 3. A Judge may intend two rationes, one of which may be treated by a later Judge as an obiter dicta
statement because it was not essential to the decision.

Persuasive Precedents. These are statements which a later court will respect, but need not follow. There
are several kinds of persuasive precedent;

a. Obiter Dicta. There are two types of obiter dicta;

i. A statement which although based upon fact, were not found to exist.
ii. A statement which although based on the facts as found does not form the basis of
the decision, for example, a dissenting [minority] judgement.
b. Ratio decidendi of inferior courts.

Overruling and Reversing

a. Precedents can be overruled either by statute or a superior court. Judges are usually reluctant to
overrule precedents because this reduces the element of certainty in the law
b. Overruling must be distinguished from reversing a decision. A decision is reversed when it is altered
on appeal. A decision is overruled when a Judge in a different case states that the earlier case was
wrongly decided.

Distinguishing, Reconciling and Disapproving

a. A case is Distinguished when the Judge states that the material facts are sufficiently different to apply
different rules of law.
b. Cases are Reconciled when the Judge finds that the material facts are so similar that he can apply the
same rules of law.
c. A case is Disapproved when a Judge, without overruling an earlier case, gives his opinion that it was
wrongly decided.

Advantages and Disadvantages precedent

a. Advantages
1. Certainty. It provides a degree of uniformity upon which individuals can rely. Uniformity is
essential if justice is to be achieved. The advantage of certainty by itself outweighs the several
disadvantages of precedent.
2. Development. New rules can be established or old ones adapted to meet new circumstances and
changing needs of society.

25
3. Detail. No code of law could provide the detail found in Case Law.
4. Practicality. The rules are laid down in the course of dealing with cases, and do not attempt to deal
with future hypothetical circumstances.

b. Disadvantages
1. Rigidity. Precedent is rigid in the sense that once a rule has been laid down it is binding even if
it is thought to be wrong.
2. Danger of illogicality. This arises from the rigidity of the system. Judges who do not wish to
follow a particular decision were it is difficult to find the ratio decidendi of a case this detracts
from the element of certainty.
3. Bulk and Complex. There is so much law that no – one can learn all of it. Even an experienced
lawyer may overlook some important rule in any given case.
4. Slowness of growth. The system depends on litigation for rules to emerge. As litigations tend to
be slow and expensive the body of case law cannot grow quickly enough to meet modern
demands.
5. Isolating the ratio decidendi. Where it is difficult to find the ratio decidendi of a case this
detracts from the element of certainty.

26
27
UNIT EIGHT: THE WORLD LEGAL SYSTEM

Introduction

Learning Outcomes
After completing this unit you will be able to:

The laws of the state differ from one state to the other. It is thus imperative that if one intends to practice
the law, he or she should learn the law of the particular state he or she intends to practice from. However,
many systems exhibit certain commonalities of the principle and practice because of the historical
backgrounds of most countries which often tend to have minor variations. The three major legal systems
are the Common Law System, the Civil Law System and the Roman –Dutch Law System. Each of these
systems exhibit peculiar processes of transference and assimilation in recipient countries which has led to
some adaptation of the systems.

ENGLISH LEGAL SYSTEM

It is typified by certain principles, namely; the doctrine of judicial precedence, ratio decidendi, adversarial
system and finally the fact that the person bringing the action carries the order of proving their allegations
to a court

the system by unifying the procedures and remedies which could be claimed. The original court structure
acceptable standard.

The term common law system describes both the institutions set up on English courts as well as the type of
law that is applied in the courts.

THE ENGLISH COURT SYSTEM

The present court was created in 1875 following the enactment of the Judicature Act of 1873. The Act
completely re- organized consisted of the following;
28
 - The lowest level court or county courts.
- The next higher level courts were known as common pleas
- Then the kings bench
- The exchequer, and
- The court of chancery

- The court of common pleas had jurisdiction over disputes between individuals, particularly those to do
with land.

- The King’s Bench had jurisdiction of criminal cases

- The Court of Exchequer had jurisdiction over controversies affecting the king’s property and heir,
revenue, that is, matters to do with taxes/ taxation and the court of chancery had jurisdiction over suits.

In 1975, the result was that the local courts or county courts were abolished but the three (3) superior
courts, namely the Common Pleas, Kings Bench, Exchequer, together with the court of Chancery, were
fused into what was known as the supreme court of judication.

In addition to special courts, are to do with the administration and matters of land. The Supreme Court
jurisdiction was divided into the lower bench and the higher bench. The lower bench was called the high
court of justice, and had three (3) divisions; the Kings Bench Division, Chancery Division, and the House
of Lords.

The higher bench was the Court of Appeals which sits in two 2 divisions of three (3) Judges each and has
general appellate jurisdiction.

From the Court of Appeals, matters can go to the House of Lords which is the final court.

Previously the English system also had the Review Council. It was specifically for Appeals from
dominions or former colonies.

What is applicable in all these courts is now a unified system of law made up of,

i. The common law

ii. Statutes / Acts of parliament
iii. Rules of Equity

English common law is defined as that part of law of England formulated or developed and administered by
the old common law of courts based originally on the common customs of the country and hand written.

29
The common law involved acts of judicial decisions which then assumed the force of law.

Equity on the other hand is a body of rules originally formulated and administered by the court of chancery
to supplement the rules and procedure of the common law. Principles of equity were intended to prevent
injustices which may arise through the rigid application of the common law. In other words, principles of
equity moderate the effect of the common law. There application in all courts and under the Judicature Act
1873 was upon condition that if there is any conflict between the rule of law and those of equity, then
equity is to prevail.

e.g. equity acts in personum- whoever has a claim will work on it (follows the law).

- he who comes to equity must come with equity

- he who seeks equity must do equity- don’t seek fairness against unfairness.

Decisions made by the higher court is binding on the lower courts, but the highest court is binded by itself,
but can overrule itself. Stare Decisis that is, decisions made by a higher court are binding on the lower
courts. The hierarchical system makes order for the decisions that are made and added as part of the law.

CIVIL LAW SYSTEM (EUROPEAN)

This is used in most of European states. It has also been in other parts of the world as it is based on the
Codes / statutes for purposes of illustration, the French law system, based on the Code Napoleon, will be
looked at.

CODE NAPOLEAN

Named because it came into effect through the declaration of Napoleon, which facilitated its qualifications.
It differs from English common law system in certain fundamental ways, most important being that it is in
a written form and Judges Decisions do not enjoy the same as they enjoy in the English legal system.
Therefore, French courts have some peculiarities. It is more decentralized, do not have a jury system, thus,
there is no careful (jury – judgements should be made by one’s peers, whether the community)

Judge’s decision is based on their findings: distinction between law and fact as in case of English common
law system.

Under the French system, an appeal is treated as a complete hearing.

SOURCES OF CIVIL LAW

Codes and statutes law which include:

30
 I. The civil code of 1804
II. The code of civil procedure of 1806
III. The code of commerce 1808
IV. The code of criminal procedure 1811. This has been replaced by penal procedure in 1959 penal
code of 1811.

These are supplemented by a number of additional codes and acts such as forest, highway codes, code of
nationality and acts such as insurance, checks and industrial accidents.

The format of the codes is very similar to what we have as the laws of Zambia. They are divided into
chapters and the ultimate units are articles.

These codes have been extensively amended over the years and it is summarized up to a third (1/3) have
been revised to take into account social changes and developments particularly in commercial activities. So
it is important in making reference to the codes to have the latest version.

CIVIL LAW DECIDED CASES

They are used more to guide than actual law. They form what is known a jurisprudence; relating to a
particular point of law. The role of decided cases is to illustrate or provide guidance and the holding of such
cases in themselves are therefore, not binding.

While the Common Law system is based on Case law, Civil Law system is based on Statutory Law.

The second major difference worth noting is that, while Common Law system uses adversarial approach,
Civil Law uses inquisitorial approach.

ADVERSARIAL APPROACH

The principle feature under the adversarial system which makes it different from the inquisitorial is that the
accused is presumed innocent until proven guilty.

The legal burden is on the prosecution to prove the innocent person guilty of an offence or to prove them
wrong.

It also borders on the legal system as in this system the lawyers play an active role- they advocate; hence
the two sides and the Judge play the role of a referee. He is guided with authorities that the two sides are
relying on to argue their cases. From the pursuation of what is presented to him, he arrives at a decision.

31
INQUISITORIAL APPROACH

Under this system, the accused is presumed guilty until he proves himself innocent to the Judge. This
means that whatever evidence is brought by the layers for the guilty person is to be inquired into by the
Judge himself. In other words, he carries out investigations. He examines the evidence and interrogates the
guilty person, including the witnesses brought by the lawyers for the guilty person.

The guilty person must prove to the Judge that he or she is innocent for the Judge to release them.

The Judge plays an active role in the proceedings. This is very different from the adversarial system.

Zambia has adopted the adversarial system and has even enshrined the same in the constitution under
Article 18 (2) (a) of Chapter 1 of the Laws of Zambia, that every person is presumed innocent until proven
guilty by the courts of law or themselves state that they are guilty.

AMERICAN COMMON LAW SYSTEM

Based on English common law system but has had several hundred years in which to develop slightly
differently from the English system.
One of the major differences is that all law is accountable to a written constitution.

Also, they have a system of federalism, where a lot of states are semi – independent.

The early development of American common law system was confined to the first thirteen (13) states to
form… The other states at that time were still under Spanish control, with the system of law founded on
these jurisdictions. There is a variation in the extent to which the common law has developed in these
different states. A certain amount of resistance to English law also affected the levels of development.

The development of the common law system hinges heavily on the rights created under the constitution
which to this day have given the American courts prominence in the delivery of justice, so that it reflects
the same emphasis of binding judicial precedence as does in the former mother country.

ISLAMIC LEGAL ORDER

Conceived or is based on the Sharia law.
It is applicable in a good number of African countries side by side with circular law. (N.B.) in some
countries, this is the major foundation of the entire legal system.

32
The four (4) principle sources are namely:

i. Quran
ii. Traditions of sunna (a prophet)
iii. Ijina concerns of spensor of scholars
iv. Qiyas or analogy

QURAN

It is said to have been revealed by God to Mhammed prophet of Islam, through the Angel Gabriel. There’s
been an attempt to return it in its original form, as spoken by God, and is thus the foundation upon which
the whole structure of Islam rests. Made up of 500 different texts. Muslim sects refer to it is as well as other
sources, with varying degrees of emphasis.

(Process of) revelation took 23 years. It was to abolish customs which were against public policy such as
the states of women and the sharing of property in inheritance, infanticide.

There is what they term as Usury; which means that when you bend to someone, do not demand
[Link] of Sunna

The practices of the prophet himself are supposed to be a clear source of information on the laws and are
classified into 3 kinds:

- Sunna – al – qual: the sayings of the prophet

- Sunna – al - fil - : the doing of the prophet
- Sunna – al – tagril: the doings of others in his presence; without any objection on

his part.

IJINA.

Writings or opinions of scholars who have studied the Quran or Sunna. They interpret Islam for the benefit
of the community, so that people can live their lives in the way that God intended.

Qiyas or Analogy

Interpretation which includes cases and provides meaning with regard to the Quran. Its law in the form of
text, as applied to cases.

33
ROMAN – DUTCH LAW
Applicable in many South African countries and yet it was abolished in its country of origin, that is the
Netherlands.
It applicable because these countries have a history of colonization by the Dutch and in recent years, has
been modified by English common law.

It is a form of common law. It has its roots in the Netherlands. The combination of the Dutch law and
Roman law which resulted from the spread of the Roman Empire across much of Europe. Personal
relations like family where governed by Dutch law, commercial, by the Roman Law which was much more
advanced in the areas of commerce, etc.

In addition, to the Roman – Dutch common law also transported legislation from the Netherlands treaties
by Dutch jurists.

The General Analysis

The Common Law system is based on the Judge-made law and the statutes became popular later in order to
supplement and strengthen judicial precedents.
The Civil Law system begins with the written law and there is less dependence on cases.

The American Common Law system has used the courts to protect the constitution thereby giving
prominence to the judiciary.

Other systems worth mentioning are the Islamic and the Customary Law systems, which are now
administered side by side with the national laws. Most African countries retain the Customary Law system
as modified by the general law.

In Zambia, we have adopted the Common Law system. The Common Law system is based on the Judge–
Made Law and Statutes, thus, the basic tenets of the system are the doctrine of Judicial Precedents and
the practice of Adversarial System. (N.B this has already been discussed above). It is therefore, important
that the students understand this system so well and how it is applied in the Zambian Legal System.

CUSTOMARY LAW

The Zambian legal system does administer Customary Laws. It has embraced both the Common Law
system and the Customary Law system. Therefore it has a Dual Legal System.

34
Customary law is controversial in that it has not been accepted by jurists. Some of the reasons for this claim
are that its application may be limited to a particular group of people; that it is not certain and that generally
inadequate to regulate modern relations. Often it is subjugated to the national law. However, it remains an
important part of the Zambian legal system and, as in any other African country; it dominates family and
personal relations. Some countries have even gone so far as to codify it in an attempt to make it more fully
‘law’.

Customary law could be defined as the rule of conduct which are obligatory on those within its area of
application or scope.

PROOF OF CUSTOM

For customary law to assume the force of law, it must have;

Been established by long research and

- it must have been in existence from time immemorial

- it must be reasonable
- it must have obligatory force
- It must not be in conflict with any written law
- it must be certain
Under the Zambian law, customary law is applicable only if;

- it is not repugnant to national law,

- it is not repugnant to natural justice, and
- if it does not contradict any written law
It is limited in its application only to communities which recognize its binding force amongst themselves.

In order to be recognized and applicable in court, it should have characteristics identified above which can
be proved in a court of law.

HISTORICAL DEVELOPMENT OF THE LEGAL SYSTEM

It must be noted that Zambia has a Dual Legal system made up of General or Statutory law and the tribe
specific Customary Laws. The general law is based on the English Common Law and system. The General
or Statutory springs from common law and selected British Acts which replace or subjugated to local
statutes but remain the reserve law. The combination is what is termed as General Law.

35
The legal system has developed in such a way that the customary law was relegated to special courts
handling civil disputes among Africans and could be set aside if it contradicted the written law or offended
English principles of justice, equity and good conscience. The standard then retained is that it creates two
standards of justice applicable side by side with regard to the same population. The important aspect then to
take note of is; does this practice bring about substantive justice or perpetuates injustice for the sole
purpose of convenience.

36
UNIT NINE: THE EVOLUTION OF THE ZAMBIAN COURT SYSTEM

Introduction

Learning Outcomes
After completing this unit you will be able to:

History of the Zambian court system

The history of the Zambian court system begins with the coming of the British South Africa Company in
the late 20th century. The first document establishing the formal court system is the Barotseland - North
Western Rhodesia Order in the Council of 1899. Under that Order in Council, provision was made for the
appointment of Judges and Magistrates, and English law was to apply.

Except were otherwise, in the owner and the High Commissioner was empowered to issue such
proclamations as necessary to maintain order in the territory.

Customary law was afforded a limited degree of protection. The Commissioner was expected to respect any
native laws or customs by which the civil relations of any natives: - chiefs or laws or customs and tribes by
except so far as the same may be incompatible with her Majesty’s powers and jurisdiction.

No official recognition was extended to tribal courts. The North Eastern Rhodesia Order in Council of
1900 which covered the territory of 1899 Order in Council established a more elaborate judicial structure
than the Order of 1899.

A High Court was created with Civil and Criminal jurisdiction over all cases in the territory. However,
under the 1900 Order, customary law was given only the same limited degree of protection as had been
provided under the 1899 Order.

Application of the customary law in civil cases was restricted to African litigation even in the British
courts. In so far as the same was not repugnant to natural justice on morality or to an order made by her
Majesty in Council, where such a case came before the High Court, they were to sit with one or two natives

37
to advise the court up on the native law and custom but the decision of the court was to be made and
founded down by the Judges on the Magistrate alone.

In all other cases, the courts were to follow as far as possible, the procedure as in similar cases in England.

Like in Barotseland- North Western Order in Council 1899, the 1900 Order did not extend official
recognition to tribal courts nor any system of appeal provided from tribal courts to Magistrate’s courts or
the High Court. Thus two distinctly different systems of judicial administration developed.

Firstly, the officially recognized English courts that administered the English judicial system;

Secondly, the de facto tribal courts administering customary law.

So long as African litigants were willing to accept the decision of the tribal courts, contacts and conflicts of
the two judicial systems were kept at a minimum.

In the years 1900 to 1911, the colonial infrastructure was developed in North Western and North Eastern
Rhodesia. The creation of justice of peace and commissioners were appointed, hut taxes were imposed,
North Western Rhodesia acquiring the courts and Two Judges appointed to sit in North Western and North
Eastern Rhodesia.

In 1911, it became necessary to join the two territories so that they could be administered more efficiently
together under the Northern Rhodesia Quasi in Council of 1911. On the 4 th May 1911, the Northern
Rhodesia Order in Council of 1911 revoking the North Eastern and Barotseland – North Western Order in
Councils and merging the two territories into one jurisdiction was promulgated; its provisions were brought
into operation by the Northern Rhodesia Proclamation Number 1 of 1911. With respect to the court system,
the Northern Rhodesia Order followed closely the pattern of the North Eastern Rhodesia Order in Council
of 1990. The manner of appointment of the High Court Judges was the only material variation.

The effect of this Order was that the Magistrate Courts were expanded and the Penal Code (copied from
India) was put in place. Native courts were not created until 1936, known as Urban Native Courts, set up
under the Native Courts Ordinance in 1936. These courts usually had 3 or 4 Justices sitting in and the
appointments were done by the tribal chiefs from the rural areas subject to the approval by the district
officers from were each native court was located.

The reason of drawing justices from the rural areas was to ensure that they were experts in customary law
and in this regard they were only appointed for a 3 year term so that there was no continuous appointment
of justices who had up to date as knowledge of customary law applying in rural areas.
38
Between 1936 to 1960, there was little change in the court structure and the enabling legislation. However,
in 1964, post independence; there was a spate of changes: the two (2) most important being; the
establishment of the Court of Appeal for the territory, and secondly, the creation of local courts to replace
native courts and make them a part of the formal court system.

N.B. two – tier system resulted in 2 standards of justice applying to the same population.

Some schools of thought that have been argued or advanced to resolve this two –tier system are;

i. The need to ensure that whatever law we come up with is accessible, meaning that; the language
must be understood.

The form in which it is put must not be complicated and inaccessible because:

- Part of the law not directly available from the statutes

- English common law reports are inaccessible
- English statutes were a way out of data
- Customary law keeps on changing from society to society
ii. Need to adapt the law. To make it relevant to the local conditions. That is, that the law makes
sense with our reality, e.g. giving Judges enough latitude in their decisions
iii. Bring the law system much closer together; strengthening the links together.
iv. Have one system altogether.
- Stop looking at common law as a law on its own and customary law on the other hand.
- put it together probably in statutory form

39
UNIT TEN: THE JUDICATURE FOR ZAMBIA

Introduction

Learning Outcomes
After completing this unit you will be able to:

Part 6 of the Constitution of Zambia has provided for the system and has divided it into the following: -

i. The Supreme Court of Zambia

ii. The High Court of Zambia; with a parallel court- The Industrial Relations Court
iii. The Subordinate court
iv. The Local courts
v. Provision under the constitution for the provision of lower courts

A court is a court because it has been authorized by law.

THE SUPREME COURT

This is covered under chapter (CAP) 25 of the laws of Zambia. Its jurisdiction is usually appellate. When
the law gives specific powers, it can apply original jurisdiction, e.g. in cases of presidential petitions. When
exercising its appellate jurisdiction, it deals with cases of civil and criminal nature; appeals from High
Court, Industrial Relations Court and the Lands Tribunal.

In hearing these Appeals, it follows certain procedures contained in CAP 25 of the Laws of Zambia and the
White Book, which is the English Law Practice

The court is made up of nine (9) Justices and when all of them are sitting it is called a ‘Full Bench ‘.

40
Normally, three (3) Judges sit and if two judges’ opinion judgement is the same, they will form the
majority and the decision will be based on the same. One Judge can write a dissenting judgment, but will
have no effect on the judgement. The court must always sit in an odd number, i.e 1, 3, 5, 7, 9.

The Supreme Court Judges are generally Judges who have served in the High Court but have built a strong
reputation over time.

Supreme Court Judges enjoy the security of tenure and the procedure for their removal is contained in the
constitution. Retirement is upon attainment of 65 years old. Afterwards the Judge can be brought returned
on contract basis.

They may only be removed for reasons stated in the constitution.

The Deputy Chief Justice acts in the absence of the Chief Justice. However, the president may appoint
somebody junior than the Deputy Chief Justice to act as the Chief Justice.

Because the Supreme Court is a ‘final’ Court of Appeal, matters raised in this court can never be raised
again. Death penalty may be appealed to the president who may exercise the prerogative of mercy to
pardon.

The Supreme Court deals with matters based on legal issues not on facts.

Criminal Appeals may rely on the law of courts of appeal of England; similarly also, in civil matters.

The coverage is nation wide. Normally sits in Lusaka and Ndola- it is determined by the Chief Justice
(these days even kabwe hears Supreme Court’s petitions). The calendar is done by the Chief Justice. The
Chief Justice is a member of the High Court. He can come down to sit in the High Court as a single Judge.
In practice this is not so much encouraged as where a party to the dispute decides to Appeal to the High
Court’s decision, the case is likely to find itself to the same Judge and the possibilities of the decision being
altered, reversed are minimal in such instances. Justice demands that it should be seen to be done.

HIGH COURT OF ZAMBIA

This is covered by CAP 27 of the Laws of Zambia and the Constitution. It is set up in various divisions of
Zambia – every provincial Head Quarters of Zambia except in the Copperbelt and Southern province which
have two.

41
Usually more than one High Court Judge will sit in these courts.

The total number of Judges depends on the Acts of Parliament. It’s also catered for under the Constitution.
High court judges also enjoy the security of tenure like the Supreme Court Justices.

The High Court Judges are also appointed by the president but in consultation with the Judicial Service
Commission. Then the ratification is done by parliament.

For one to be appointed as High Court Judge, one has to be a holder of a law degree with ten (10) years
experience at the bench, familiar with procedure and general legal system, etc, and be able to act
impartially.

So when they move from High Court to Supreme Court, it is simply a promotion, and therefore, there is no
need to be scrutinized by parliament again.

The law that is applied is partly contained in the High Court Rules, but they also rely on the Criminal
Procedure Code and the English Rule Procedure.

The High Court have both original and appellate jurisdiction which means that matters can begin in the
High Court and go to the Supreme Court for Appeal, or; a matters can start in the Subordinate Court and go
to the High Court for Appeal.

The High Court jurisdiction is unlimited. It can hear any civil and criminal or constitutional matters.

Both the Supreme Court and the High Court are superior courts of records; they keep detailed records and
procedures that were followed to arrive at a particular decision by a Judge.

They exercise the same amount of powers, for example, the judgement made by one Judge does not bind
the other. If one case has been heard in the Ndola High Court you can not take it to Lusaka High Court.

When the High Court is dealing with matters of customary law, it sits with assessors since the High Court
Judges are not experts in customary law.

If it’s a marriage based on customary law, it will be handled by local courts. Subordinate courts do not
handle divorce / matrimonial cases. It is only the local courts or the high courts.

When the court is using common law and rules of equity, and there happen to be a conflict, the principles
of equity must prevail.

42
SUBORDINATE COURTS

These are covered by CAP 28 of the Laws of Zambia. Unlike the Supreme Court and the High Court, the
powers of the Subordinate Courts are not mentioned under the constitution, therefore, are not protected by
the constitution. However, because there exists an appeal process from the subordinate to higher courts,
they are protected, these Lower Courts can carry out justice without any fear of the state.

Under CAP 28, the Subordinate Court have limited jurisdiction in several cases.

-limited in geographical coverage (have powers to deal with cases in certain disputes only)

- limited in types of cases it can deal with:

i. matters beyond subordinate courts : cases involving a certain amount of value

ii. Divorce matters must commence in the High Court (and not Subordinate Court). If the marriage was
under customary law, it must go to the local courts.

iii. Treason, murder, etc. can not be handled by subordinate courts.

iv. Cases of constitutional nature – where a claim is based on fundamental rights, these can not be
commenced in the subordinate courts, only in the High Court

Subordinate courts are normally very busy courts as they deal with daily cases of routine of life.

These courts are presided over by the Magistrates. Magistrates are in classes. The law has however given
them equal power as regards their judicial powers. They do not refer cases to other Magistrates who are
professionally above them. They commit cases that they can not handle to the High Court. For instance in
cases were a magistrate can not sentence an accused and convicted person to certain years such as more
than five (5) years in imprisonment by a magistrate class 3 as that will be outside jurisdiction. Or, due to
amounts they fine as also they differ in fining according to class. Highest in class being the Principal
Resident Magistrate) who can handle a matter involving of up to Thirty Thousand Kwacha only (K 30,
000.00).

Some types of offences that are not handled by the subordinate court include; murder, which attracts a
death penalty, constitutional issues, etc

However, most offences begin in the magistrate courts. E.g. they have vast powers over criminal matters as
compared to civil matters. Under civil matters, the subordinate courts can not hear for example, divorce
matters, adoption cases, legitimacy matters, constitutional matters, etc.

43
Subordinate courts have power to apply customary law, but need to sit with assessors who are experts at
customary law. Under section 16 of the Criminal Procedure Code Chapter 88 of the Laws of Zambia,
customary law that is applied must be in line with principles of equity, and not repugnant to natural justice.

Subordinate courts can access English common law and equity, but if there is a conflict between the two,
principles of equity must apply. Also, it relies on the Criminal Procedure Code.

LOCAL COURTS

These are covered under CAP 29 of the Laws of Zambia. Though the local courts are part of the judicature,
they do not enjoy benefits of the High Court or Supreme Courts. Local courts are created under a warrant
of a minister.

Two types of local courts:

- Grade A
- Grade B

The persons who sit or presides over the Local Courts are called Local court justices.

The law that applies in the local courts are;

- Customary laws
- Bye laws; the council bye laws and regulations
- Specific authorization by an Act of parliament.

Offences under a local court are outlined in the penal code.

Appeals from the local court are taken as a re-trial by the subordinate courts.

Quality of work in the local courts is not up to date, there is no proper record keeping.

If a lawyer stands in a local court, the local court officer will normally be appointed to stand in.

Lawyers do not go to local courts, they have no audience in the local court unless they themselves have
taken an issue to be heard in the local court.

SMALL CLAIMS COURT

These are created under CAP 47 of the Laws of Zambia. They are fairly new. They are headed by an
Arbitrator or a Commissioner employed on a part time basis. He or she must be a lawyer with at least five
(5) years experience at the Bar.
44
Matters which are trivial are supposed to be taken there;

It is supposed to be speedy, simple and informal.

The general public has access to the proceedings.

The lawyers can not appear, however, a person who is a spouse, guardian, members of the house (in other
words an elderly person) or any member of the household can appear on his behalf.

The primary aim and function of the small claims court is to reconcile parties and do substantial justice.
They are not bound by strict rules of evidence. They apply principles of equity.

OTHER JUDICATURES
Other courts, institutions do exist- to more or less administer justice and procedural dispute resolution.

 Procedural justice: ensures that the same law is applied to every one; ensures that procedure is
followed.
 Substantive justice: substance of justice is administered.
i. The Industrial Relations Court (IRC)

These are created under the Industrial and Labour Relations Act, CAP 269 of the Laws of Zambia.
Its jurisdiction is limited to labour matters. The people who preside in the IRC are:

a. Chairman
b. Deputy chairman
c. Other ten (10) members of thecommunity

N.B- lawyers could be appointed as IRC Judges

The court is more concerned with substantive justice

It is not obliged to follow strict rules of evidence, but it does follow basic rules of procedure.

Members can not sit on their own, but with the chairperson or deputy.

The Industrial Relations Court also punishes for contempt of court.

Because it is on the same level as the High Court, Appeals go straight to the Supreme Court.

ii. The LANDS TRIBUNAL

These are created under the Lands Act CAP 184 of the Laws of Zambia.

45
 It is also almost at the same level with the High Court. Appeals from the Lands Tribunal go straight
to the Supreme Court.

It is presided over by a Chairman who is equivalent in rank to a High Court Judge.

The other members of the Tribunal are:

i. The town planner

ii. The Registrar
iii. The valuation surveyor
iv. Three other persons from the public sector

Its jurisdiction is limited to disputes over land. They adjudicate and make Awards under the
adjudicature. They are not obliged to follow strict rules of obedience.

iii. THE REVENUE APPEALS TRIBUNAL

These deal with Appeals for taxes levied by Zambia Revenue Authority. The speed up processes so
that money for the Government is not held up. They try to dispose of cases within three (3) months.
(they deal with every form of taxes; VAT, Income Tax, Customs and Excise Duty)

An over view: The Judicature Administrative Act is supposed to bring autonomy and greater
independence of the judiciary, i.e. CAP 24 of the Laws of Zambia

Other officers / institutions that compliment the role of the judiciary include;

- The office of the Attorney General

- The office of the solicitor General
- The director of public prosecution
- The investigator general
- The human rights commission
- The anti corruption commission
- The prisons service commission
- The sheriffs of Zambia
- The council of law reporting
- And any other that plays a role in one way or the other in ensuring that the law is obeyed and
justice is achieved at all times

46
47
UNIT ELEVEN: ALTERNATIVE DISPUTE RESOLUTION

Introduction

Learning Outcomes
After completing this unit you will be able to:

Dispute Resolution

This is vital in the administration of justice. Other than the courts, the law has also provided for alternative
dispute resolution. These include;

Tribunals
E.g. the lands tribunal or any tribunal put up to deal with a specific problem or matter at hand. The
main difference from the ordinary court is their composition. Members of the tribunal can be
lawyers, judges or laymen with a specialized knowledge of the field in which the tribunal
operates.

Arbitration
Mainly in the field of commerce. Parties prefer arbitration as proceedings are done by an arbitrator
with special knowledge of the particular trade or business. The proceedings are also held in
privacy. An agreement to refer disputes to arbitration is a contract, and therefore subject to the
ordinary law of contract. The arbitrator has an implied power to examine witnesses, order the
inspection of documents and any other that is done in the ordinary courts. The arbitrator’s final
decision is known as an Award. This is binding on the parties. If any of the parties is not happy
with an Award, they can appeal to the courts of law.

48
 Mediation
This is also an alternative to dispute resolution. Parties can engage someone independent to sit in
and help them resolve a dispute. This independent person sits as a facilitator. He does not make
any decisions that must bind the parties; he only helps them reach to an agreement that would
benefit the parties. The parties themselves will have to reach a consensus. In mediation there is no
loser, parties always reach a compromise. Where they fail to reach an agreement, they are free to
take the matter to court.

Reconciliation

This is also an alternative to dispute resolution. The parties can on their own or by the advise from
the court resolve a dispute out of court. It can also be done by an outside agency to which either
party to a dispute must engage this conciliator or if in the opinion of the court there is a good
chance of settlement of issues outside court.

Alternative dispute resolution offers us with an alternative in the attainment of justice. They are interested
in doing substantial justice.

- They are quicker in disposing of cases

- They do not follow the strict rules of evidence but consistent with the proper conduct of their
affairs
- They are fast as they engage people with a special expertise and knowledge to deal with
matters
- They are faster and cheaper in comparison to ordinary court’s costs
- They are able to meet by appointments

49
UNIT TWELVE: THE PERSONNEL OF LAW

Introduction

Learning Outcomes
After completing this unit you will be able to:

JUDICIAL SYSTEM

The functions or duty of the Judge is to declare and apply the existing law of the state and not to make new
or fresh law. The effect of this however, is in many cases, to establish a new rule of national law; and law
so made is termed as Judge made law.

The Judge reviews and examines the various acknowledged authorities which bear on the facts in issue, and
reasoning by inference or analogy from them, he deduces some principle which he considers relevant to the
facts he has found proved. He then applies that principle to those facts and gives his judgement in
accordance with it. The reason for the decision when abstracted from the facts peculiar to the case amounts
in effect to a principle and is termed the ratio decidendi of the case. This principle possesses binding force,
with the consequence that a new rule of law or precedent has been evolved and constituted. The significant
consequence follows from the fact that the principle laid down in the decision becomes binding on the
whole community. The actual parties however are bound by the judgement and the judgement will, if
necessary be enforced by the state against the unsuccessful party.

It is true that the decision may be overruled or altered by a higher court on appeal, but this new decision
simply becomes law instead of the former.

Once a decision has been given by the highest court in a state, it is practically conclusive and final, for the
parliament alone can repeal or modify a rule of law made by the highest court. Many instances, such
changes are generally effected as a result of the suggestions of the highest court itself.

50
Obiter dicta- as the Judge is making his decision, he often gives his opinion upon a point of law which
might not be necessary for the decision to the present case. That expression of opinion is what is known as
obiter dictum. These opinions if made by an eminent Judge, they are most valuable as reasoned statements
and they may even very well influence the courts on a later occasion.

N.B. - The appointing authority and qualification of a Judge has already been highlighted above.

The Magistrates
These are officers of the court appointed by the Judicial Service Commission. The Magistrates preside over
the subordinate court. In Zambia, they are in all the districts of the republic. Magistrates are in classes; that
is, in order of seniority;

- Principal Resident Magistrate

- Senior Resident Magistrate
- Resident magistrate
- Magistrate Class 1
- Magistrate Class 2
- Magistrate Class 3

Though magistrates are in classes, they have equal powers as regards judicial functions. That is, magistrates
do not supervise each other. The High Court plays a supervisory role over them. For instance, where a
magistrate has no jurisdiction to sentence the convicted person because the law does not give him or her
powers to sentence the number of years provided for by the offence committed, the magistrate will not
sentence the accused, he or she will commit the sentence to the High Court to pass the sentence. The
magistrate can not commit the sentence to a magistrate with powers under the law to hand down such a
sentence.

The Principal Resident Magistrate, Senior Resident Magistrate, Resident Magistrate are professionals-
legal, while the Magistrate Class 1, Magistrate Class 2 and Magistrate Class 3 are lay professionals. They
are not lawyers.

Magistrates have wide jurisdiction in criminal matters and limited in civil matters.

Magistrates have limited geographical jurisdiction. They only have jurisdiction in a district they preside
over.
51
Magistrates also take into consideration the monetary value of the case before them, the law has placed
some limitations in the cases they can handle as regards monetary value.

LAWYERS

A lawyer is an officer of the court. A lawyer has a duty to the general cause of justice; they must act in the
interest of the client and also for the profession so as to promote, protect and assist members of society.

The professional standard and conduct in Zambia relates much to that which obtains in England. However,
in England the profession comprises the solicitors and barristers. In Zambia we have a fused system were
advocates are both solicitors and barristers.

The primary objective of a solicitor is to do work which a barrister will present in court. A solicitor pays
the barrister.

The barrister has no actual relationship with a client and it is a solicitor who professes to be knowledgeable.

In Zambia, the advocate is in direct contact with the client and it is cheaper and better in that the client is
directly dealing with his or her advocate rather than through an intermediary.

THE PROCESS OF ADJUDICATION

The law has been classified in various ways. It has been divided into common law, public law and private
law. However, the main division is the one between Criminal law and Civil law.

In Civil action the dispute is between two private citizens or private corporations. It may also be between
an individual person and a corporation or the state. In any of these actions the parties may try to resolve
their differences before they proceed to the trial stage before a magistrate or the judge. If they fail to settle
the matter ex curia (out of court) they may then try arbitration. If that method of dispute – resolution also
fails, the parties then finally resort to adjudication in a Court of Law.

In a criminal matter, the offender is said to have wronged not only his victim but the whole community.
For that reason the offender and the victim are not allowed in law to negotiate and settle the matter out of
court. This is because the whole society has an interest in it, namely, to see that the offender is punished if
convicted.

52
The term Adjudication may refer to the process of trying a matter in court or may mean the judgement in
the case. To adjudicate is to judge or adjudge, or decide a dispute. It comes from the Latin word “judex”

Osborn on page 187 of his law dictionary already cited above described the term judgement in the
following in the following words:

“Judgement is a decision or sentence of a court in a legal processing. It includes the reasoning of the
judge which leads him to his decision, which may be reported and cited as an authority, if the matter is of
importance, or can be treated as a “precedent.”

This definition of adjudication or judgment denotes that is a written decision of a trial court of tribunal. Its
role in the resolution of disputes is multifarious. The first role is that taking of the matter to court for
adjudication gives the parties the freedom of having their matter settled by an independent non- partisan
person or body of persons who have no interest whatsoever in the case. The vast majority of such
resolutions of disputes are fair and judicious, and are accepted by the parties, because the adjudicators do
not take sides.

Adjudication is the process of trying a matter in court of law with the ultimate aim of having a decision or
judgment handed down in a case.

So to adjudicate is simply to judge or to decide a dispute. The term comes from a word JUDEX, which
means a judge.

Once the judge adjudicates over a matter, his or her decision concludes the dispute a final way so the same
issue or the same facts can be brought against court again to be retried. This of course does not include the
appeal cases which are not treated as a part of the initial trial. It simply allows the parties to go to court.

Once the judge makes the decision at the end of the trial, the matter may close there and whatever orders
the court makes may to be complied with. When parties are unsatisfied with the decision made, they the
right to appeal to the highest level mainly the SUPREME COURT .The decisions of the Supreme Court
will provide the final conclusion to the case. At the point, the matter is said to be closed for any
adjudication.

The process of adjudication differs depending on whether the matter before the court is a civil or criminal
case. Civil disputes are usually between and private citizens or co-operation or in the case constitutional
matter may also involve state institution.
53
The action is commenced through what is known as a WRIT OF SUMMON. The writ is obtained from the
registry of each particular court. The person initiating the action is referred to as the PLAINTIFF who
prepares the writ and has it filed in the registry before he can serve it on the other side.

Once the writ is served on the defendant, the defendant chooses to file a defence in which case he has to
lodge it in the registry and serve it on the PLAINTIFF.

On the return date of trial, the Plaintiff is expected to present his/her case through whatever evidence they
have. The evidence generally includes witness to testify to the claims being made. The witness can be cross
examined by the defendant.

When the plaintiff has completed his/her case, the defendant is then permitted to present his/her case
following the same procedure. At the end of the hearing, the judge will then render a decision.

In the case of CRIMINAL PROCCEDING, the complainant who feels he has been injured and feels that
what particular injury constitute a criminal offence, may report the matter to the police.

The police will then investigate the complainant and if necessary, will then launch criminal proceedings
against the person accused of having committed the injuring the police will then arrest the accused person
and bring him the trial.

The trial begins with the presentation of the prosecutions case at the end of which the court may decide and
put the person on his/her defence.

At that point, the accused will then present his/her case at the end of which the court will hand down the
decision.

The court may decide to quit or convict, then they will hand down what they consider to be the reasonable
punishment.

The judgement of the court involves civil and criminal proceedings. This must incorporate the reasoning of
the judge which led to the court decision; this ensures the court decisions are not arbitrary.

Adjudication is therefore an important way in which to resolve disputes within society because it is
conducted in an open, logical and systematic.

54
LEGISLATION

The most important source of law at present day is legislation. Statutes are passed by parliament which is
the supreme law making body. In theory, at least there is nothing which parliament cannot do by statute. In
practice, statutes often amend, and sometimes abolish established rules of common law or equity, overrule
the effects of decisions of the courts, or make entirely new law on matters which previously have not been
the subject of legislation.

There are two types of legislation, parliamentary and delegated legislation. The functions of Acts of
Parliament are as follows:

i. Law reform. Relatively few statutes are concerned with changing substantive rules of law. Where
such a change does take place, it follows from an unpopular decision of the House (Parliament) or is
based on a recommendation of the Law Development Commission.
ii. Consolidation. Where existing legislation is gathered into one Act this known as consolidation.
iii. Codification. This takes place when all the law on a topic (both case law and statute) is included in
one Act.
iv. Special legislation. These Acts are concerned with the day to day running of society, for example
the Rent Act.

An Act will come into force on the day on which it receives the presidential assent, unless some other date
is specified in the Act itself. It will cease to have effect only when it is repealed by another Act. Whilst in
force an Act is presumed to be operative throughout the state and nowhere else, unless the Act states
otherwise.

The constitutional position is that parliament has the sole power to make laws by creating legislation.
Parliament however, can pass on, or delegate its law making power to some other body or individual.
Delegated legislation is of particular importance in the contemporary legal context because instead of
general and definite Acts of Parliament, which attempt to lay down detailed provisions, the modern form of
legislation tends to be of enabling type, which simply states the general purpose and aims of the Act.
Delegated legislation is actually more significant and designed to achieve aims.

55
Types of delegated legislation
i. Statutory Instruments
These are means through which government ministers introduce particular regulations under powers
delegated to them by parliament in enabling legislation
ii. Bye – laws
These are the means through which local authorities and other public bodies can make legally
binding rules and may be made under such enabling legislation as the Local Government Act CAP
281 of the laws of Zambia.
iii. Professional Regulations
These are rules governing particular occupation and may be given the force of law under provisions
delegating legislative authority to certain professional bodies. An example of this is the power given
to the Law Association of Zambia (LAZ), under the Law Association of Zambia Act CAP 31 of the
Laws of Zambia, to control the conduct of practicing lawyers.
Advantages of Delegated Legislation

i. Time – saving- this save time for parliament, allowing parliament to concentrate on the discussing
matters of general policy
ii. It can be brought into existence swiftly enabling ministers to deal with urgent situations, such as a
strike in an essential industry.
iii. It enables experts to deal with local or technical matters
iv. It provides flexibility in that regulations can be added to or modified from time to time without the
necessity for a new Act of Parliament

Disadvantages of Delegated Legislation

i. Law making is taken out of the direct control of elected representatives and is placed in the hands of
employees of government departments. This is in theory less democratic
ii. Parliament does not have enough time to effectively supervise delegated legislation or discuss the
merits of the rules being created
iii. A vast amount of law is created, statutory instruments out numbering by far the amount of Acts
passed each year.

How is Delegated legislation checked

i. Through Judicial control.

If a minister government department or local authority exceeds its delegated power, its action would
be held by the court to be ultra vires i.e. (beyond the powers of) and therefore void.

56
 ii. Parliamentary control.
This could be done by the House scrutinizing the Statutory Instrument or; by the process of
approval and disapproval

The Need for Statutory Interpretation

When parliament passes law, they are supposed to be interpreted by the legislature in line with the doctrine
of the separation of powers. However, it is not always that legislation that comes out of parliament is easy
to interpret. Many cases which have been entertained by the common law courts have been to decipher
from a statute, the actual intention and aims of a particular piece of legislation.

The idea of interpreting a statute is to discover the intention of the law maker. Where the words of a statute
are absolutely clear the need for statutory interpretation will not arise, because the persons affected by the
statute will have no difficulty in conducting their affairs according to the statute. However, where there is
ambiguity or uncertainty interpretation is necessary.

i. Ambiguity is caused by an error in drafting whereby the words used are capable of two or more
literal meanings.
ii. Uncertainty arises when the words of a statutes are intended to apply to various factual situations
and the courts have to decide whether the case before them falls within the factual situations
envisaged by the Act. Uncertainty is far more common than ambiguity.

JUDICIAL APPROACHES TO INTERPRETATION

There are three recognized judicial approaches to statutory interpretation. The approach chosen will be
used. They are known as ‘rules’ although they are not rules in the accepted sense of word.

a. The literal rule. This is basic rule of interpretation. It states that the words used must be given their
literal or usual meaning even if the result appears to be contrary to the intention of parliament.

In Fisher v. Bell (1961) the Restriction of offences weapons act 1959 made it an offence to ‘offer for sale’
certain weapons including ‘flick knives’. A shopkeeper who displayed these knives in his window was
found not guilty of the offence, since although he had displayed the goods sold the goods had not offered
them for sale, because goods on display are not an offer to sell, they are an invitation to treat.

57
 b. The golden rule. This states that the literal must be followed unless to do so produces an absurd
result. Where a statute permits two or more literal meanings application of the golden rule is not
inconsistent with the literal rule since the literal rule cannot be applied in such cases. However, in
rare cases a judge will apply the golden rule to a statute which has only one literal meaning:

In Re Sigsworth (1935) the golden rule was applied to prevent a murderer from inheriting on the
intestacy of his victim although he was as her son, her only heir on a literal interpretation of the
ADMINISTRATION OF ESTATE ACT 1925.

The golden rule may be criticized as being subjective since a judge who decides that a literal
interpretation is absurd, and therefore contrary to the intention of parliament, must be ascertaining
the intention of parliament from a source other than the statute itself. This is strictly speaking
beyond his function.

c. The Mischief rule. Where an Act is passed to remedy a mischief the court must adopt the
interpretation which will have the effect of remedying the mischief in question. For example, The
AFFILIATION PROCEEDING ACT 1957 refers to ‘single women’. This has been interpreted to
include not only unmarried women but any woman with no husband to support her because the
mischief which the Act was passed to remedy was the possibility of a woman having an illegitimate
child with no means of supporting it.

FURTHER RULES OF INTERPRETATION

The statute must be read as a whole, and each section must be read in the light of every other section,
especially an interpretation section.

The Eiusdem Generis Rule. Where general words follow two or more particular words they must be
confined to a meaning of the same kind (eiusdem generis) as the particular words. For example, ‘cats, dogs
and other animals’ means other domestic animals.

Where a criminal statute is uncertain or ambiguous, it is generally interpreted in favour of the individual. In
R V. Hallam (1957) it was held that the offence of ‘knowingly possessing an explosive ‘ required the
accused to know , not only that he possessed the substance, but also that it was explosive.

Where a statute does not make an alteration of the law absolutely clear, it will be presumed that parliament
did not intend to alter the law. For example,
58
The Purposive Approach

The purpose approach looks at the purpose behind the legislation so as to give effect to that purpose. In the
Pepper V. Hart (1993) the courts in England were allowed to look at Hansard Parliamentary debate
records to get the meaning of a statute which was seemingly ambiguous.

R v. Registrar General (1990)

Smith wanted a certificate in order to find his mother. The problem was that he was a dangerous murderer
in Broadmoor Mental Hospital. With a clear expressed history of hatred towards his mother, Interpreting
the law literally meant that he had a right to get his birth certificate and therefore able to locate his mother.

Using the purposeful approach, it was held that parliament could never have intended to promote the
possibility of such serious crime.

The need for tools of statutory interpretation is not a luxury of the judges, but a necessity of law and order.
A judge sitting either alone or with assessors usually needs to resort to the rules of interpretation in order to
ensure that his/her interpretation of a particular piece of legislation is in line with the intention of
parliament. Additionally, rules of interpretation enable judges sitting in different courts to interpret a
similar piece of legislation similarly.

It is common knowledge that language is as dynamic as there are a variety of situations. The same word in
a sentence if used in different contexts may carry a totally different meaning. For example, the word “park”
will carry a meaning depending on the circumstances in which it is used. “I am going to ‘park’”. I am
going to ‘park’ the car.” The same word “park” when used in different contexts carries different meanings.

Presumptions of Interpretation

When judges are faced with a statute to interpret, they are obliged to assume certain things. As with all
presumptions, a contrary intention will make such a presumption inapplicable. Some of the presumptions of
interpretation include the following:

i. Presumption of statutes being in line with common law

The judges will have to assume that a certain statutory provision is supplementing common law and
not replacing it. In other words, all statutes have to be interpreted in line with the common law unless;
the statute itself indicates that the position of common law has thus far been altered.

59
ii. Presumption of a mens rea as a requirement in criminal cases
In every criminal case, there are two elements which need to be proved. These elements are the actus
reus and the mens rea. The actus reus is the actual unlawful criminal act such as, the taking of property
belonging to another person in the crime of theft or the causing of grievous bodily harm causing death
in the offence of murder. In most cases, it is easy to prove the guilty act by simply looking at the event
and the evidence available for commission of such an offence. The mens rea on the other hand is the
guilty mind required for a person to be criminally culpable. It is possible for the person to commit a
criminal act, but to be innocent of the crime because of the lack of the requisite mental state. For
example, if a person kills another while hunting honestly having believed that the victim was an animal
hiding behind a hedge; such a person may not be found guilty of the crime of murder because when
the act occurred, the shooter did not have the requisite mental state of intending to kill the other. In line
with statutory interpretation, a judge always has to start with the presumption that mens rea is required
in all criminal offences.
iii. Presumption of the law applying prospectively and not retrospectively
The judge needs to also assume that the law will apply prospectively and not retrospectively. In other
words, the presumption is that the law will punish future wrong – doing and not past wrong – doings.
Therefore, when interpreting a statute, the judge will need to interpret it in the spirit of punishing future
conduct and not pass conduct. However, it ought to be re – emphasized that this is only a presumption
and that it can be rebutted if a contrary intention is shown.

RULES OF LANGUAGE

1. Expressio unius est exclusio alterius rule

One of the rules of language relate to the fact that, if in a statute there is a list and that list is
exclusive, only the things in the list are in the reckoning. This is represented by a latin maxim,
expressio unius exclusio alterius which literally means, ‘the expression of one, excludes others’.
2. Eiusdem generis rule
This rule requires that a judge considers the fact that, where there is a list of things in a statute, and
that list is followed by the general words, the general words are to be interpreted in line with the list.
For example, where a statute states that “whiskey, brandy and so on are to attract a V.A.T. of 25%,
the list is “whiskey and brandy”, while the general word is the “and so on”. The general words (…
and so on) are to be interpreted in line with the list. In other words, on the … so on, the judge may
interpret it is as including vodka, but may not include coca cola. For example, in Powell v.

60
 Kempton Racecourse (1899), the general words ‘other place’ were held to mean ‘other in door
place’ because the list referred to a ‘house, office, room or other place.’

3. Noscitur a sociis rule

Another rule of language relates to the fact that statutes ought to be interpreted in the context of the
words and not simply as individual words. Words are generally interpreted in the context of the
Section and Act as a whole. This represented by another Latin maxim noscitur a sociis which means
‘knowing a word by the company it keeps’.

Statutory Interpretation and Judicial Precedents

Precedents and legislation are sometimes mistakenly regarded as separate sources of law. This is not the
case because once a superior court in the hierarchy has interpreted the words of an Act, an inferior court is
bound to adopt that interpretation if faces with the same words in the same Act. Thus statutory
interpretation forms a link between the sources of precedents and legislation

THE LEGACY OF COMMON LAW

The first point to stress under the legacy of common law is the fact that English Law was never imposed on
the colonies so as to oust the indigenous customary laws, that would have conflicted with the basic tenets of
indirect rule. The British policy was more realistic so it recognized the existence of two separate societies
and the fact that the societies must continue to be controlled by the norms of customary law. The relevant
customary law normally continued to govern and would be applied by untrained judges in the traditional
customary law courts.

The customary laws only ceased to operate only to the extent that they were inconsistent with local
legislation, or contrary to ‘natural justice, equity, and good conscience’.

English law has been applied where customary law was inapplicable, for example, where the nature of the
transaction between the natives showed an intention to oust customary law.

This could only be done or applicable so far as local circumstances permitted and with such verbal
utterances as might be required.

The significance of the general reception of English law is that it provides the residual law of the territory,
to which reference is made in the absence of any express rule deriving from specially local law (Vis., local

61
ordinances, adopted Acts, etc.). In some instances, it remains available in cases of any gap or ambiguity in
the local law, or can be said to be the source of law of the last resort.

PERSONS AT LAW

The law looks at who has legal capacity. Any person who has capacity at law can sue and be sued. There
are two persons at law; natural and artificial.

Natural persons are human beings with the legal capacity to sue and be sued. Legal capacity here entails; a
person who is not a minor and of sound mind. This then excludes;

- A minor
- Insane person
- Bankrupt person, not yet discharged by court

However, this does not mean they cannot access the courts; they can sue and be sued through a next friend
or guardian ad litem.

Artificial persons at law are persons made up by the law to operate as legal entities separate from natural
persons. They have the legal capacity to sue and be sued in their own capacity. Examples are corporations;
the company can sue and be sued for breaching the contract, a person can sue the company for negligence
for instance, and any other legal problem that may arise.

DOMICILE

Domicile implies a link with a particular system of law. This is important as only the laws of a state at
which you are stationed at a particular time will have an effect on you. It also plays an important role when
it comes to where the relations were made from; e.g, marriage. The place where you married from signifies
which court which will have jurisdiction to divorce you or make any matrimonial orders.

Domicile is also important many family matters such as the laws of succession; what law to apply, where
one dies from, where the estate is, etc.

A person is domiciled in a country if he is resident in the country and has the intention of remaining there.
No person can be without domicile and no person can have more than one domicile at one time.

62
Three types of domicile exist;

Domicile by origin
This attaches a person’s originality as regards the place of birth. Children at common law take up the
originality of their fathers. However, where a child is illegitimate and the father is not known or died before
the child was born, this child will take up the mother’s side.

Domicile of choice
At birth the child will have the domicile of the parents. When the child is no longer a child, they can have a
domicile of their own choice. This could be due to the fact that a person has intentions of staying in the
place other than that of the parents. One has a choice change domicile provided everything is done
according to the laws of that particular country or state.

Domicile of dependence
This, like the domicile of origin, is applied to children under the age of sixteen (16). As children, they take
up their parents or guardians domicile without choice. The dependent domicile of a legitimate child under
the age of 16 years is that of the father, ie, if the father’s domicile of origin changes, then the child’s
domicile also changes. Similarly, if the mother of an illegitimate child takes a new domicile, the new
domicile becomes the dependent domicile of the child.

Residence is also relevant in determining domicile as it implies a degree of permanence. For a married
woman, her residence is that of her husbands, though this is a question of fact to be determined by the
courts.

63