originating notice of motion in zambia

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(2)  A tenant's request for a new tenancy shall be for a tenancy beginning with such date, not more than twelve nor less than six months after the making of the request, as may be specified therein: Provided that such date shall not be earlier than the date on which, apart from the provisions of this Act, the current tenancy would come to an end by effluxion of time or could be brought to an end by notice to quit given by the tenant. Application under section 12 (2) (b) of the Act.     Dated this ........................................................ day of        , 19 ....... NOTICE BY TENANT OF BUSINESS PREMISES REQUIRING INFORMATION FROM Can the defendant bring a counterclaim(s) or defence of set-off? 4.  (1)  A tenancy to which this Act applies shall not come to an end unless terminated in accordance with the provisions of this Act; and, subject to the provisions of section ten, the tenant under such a tenancy may apply to the court for a new tenancy-, Continuation of tenancies to which this Act applies and grant of new tenancies, (a)        if the landlord has given notice under section five to terminate the tenancy; or. the Registrar shall have power to make an order giving effect to the agreement. The rules of who has custody, contemporaneity, authorship and originality of the evidence to be admitted are among the various factors the court will consider before admitting any evidence. If so, at what stage and are there any consequences? It is imperative to note that Zambia is not a signatory to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters signed on 15th November 1965 (“the Hague Convention”). (b)        any person being a mortgage in possession in respect of such an interest in reversion as is mentioned in paragraph (a); and the information which any such person as is mentioned in paragraph (a) is required to give under subsection (2) shall include information whether there is a mortgage in possession of his interest in the premises and, if so, what is the name and address of the mortgagee. Additional provisions are to be found in Order 16 of the Rules of the Supreme Court (The White Book) 1999 Edition, Volume 1 with respect to joinder of parties and third-party proceedings. from disposing of property that is the subject matter of the litigation). 6.4        Do the courts in your jurisdiction have the power to strike out part of a statement of case or dismiss a case entirely? The Subordinate Court has original and appellate jurisdiction similar to the High Court; however, its jurisdiction is limited according to the quantum of the claim and the nature of the relief being sought by a party to litigation.     3.    I would not oppose an application to the court under the Act for the grant of a new tenancy, or I would oppose an application to the court under the Act for the grant of a new tenancy on the ground that (here state ground or grounds). (b)        reference in any of the provisions of this Act to the holding shall be construed as reference to the whole of that property. In OTK Ltd v. Amanita Zambiana Ltd. and Others (2005/HPC/0199) [2011] ZMHC 23, it was argued that emails are also documents by virtue of the said definition and as such, they needed to be authenticated before their production into evidence, as is the case with a tape recording or transcript made by a device. With respect to the failure of a party to abide by case management orders or orders for directions, the court will condemn a party to bear costs for failure, and the Commercial Division will impose a punitive hearing payable before the next hearing date. An expert cannot testify on everything and thus, his testimony is restricted. 11.6      What are the major alternative dispute resolution institutions in your jurisdiction? However, there is an exception in arbitration proceedings where a party can move the High Court for interim relief before filing a statement of case. (1) subject to sub-rule (2) a practitioner shall not, in respect of any claim arising from death or personal injury, either enter into an arrangement for the introduction of clients with or act in association with any person, not being a practitioner whose business is to make, support or prosecute, whether by action or otherwise, and whether by a practitioner or agent or otherwise, any claim arising from death or personal injury and who in the course of such business solicits or receives contingency fees in respect of such a claim. 20.    Any agreement relating to a tenancy to which this Act applies (whether contained in the instrument creating the tenancy or not) shall be void in so far as it purports to preclude the tenant from making an application or request under this Act, or provides for the termination or surrender of the tenancy in the event of his making such an application or request, or for the imposition of any penalty or liability on the tenant in that event. On the question of contingency fees, Rule 9(1) of the Legal Practitioners’ Rules Statutory Instrument No. Form 75 - Originating Summons (Appearance Not Required) 58 r14. 11.  (1)  The grounds on which a landlord may oppose an application under subsection (1) of section four are such of the following grounds as may be stated in the landlord's notice under section five or, as the case may be, under subsection (6) of section six, that is to say: Opposition by landlord to application for new tenancy. LANDLORD'S NOTICE TO TERMINATE TENANCY OF BUSINESS PREMISES. 2.    In these Rules, unless the context otherwise requires-. Any misuse of the documents may be restrained by injunction or punished as contempt (e.g. advertisement in a newspaper of wide circulation. Rule 9 of the Rules provides as follows: “9. However, this is only with respect to liquidated (quantified) claims, for example a debt collection claim. The Supreme Court and the Constitutional Court rank pari passu and it is important to state that the Constitutional Court’s jurisdiction is limited to cases arising out of the Constitution. Is there anything that is particular to your jurisdiction in this context? 9.1        What different types of judgments and orders are the civil courts in your jurisdiction empowered to issue and in what circumstances? 272 (S.C.), the court held that the principle is that the opinion of a handwriting expert must not be substituted for the judgment of the court. ORDER 12 ENTRY OF APPEARANCE TO WRIT OR ORIGINATING SUMMONS 1. Section 2 of the latter Act provides as follows: “2. Significantly, where a state has not provided for a method for enforcing a right conferred by that statute, originating motion should be used – Order 40 Rule 5(1) Lagos; Order 43 Rule 5(1) Kano; and Order 42 Rule 5(1) Abuja . The basic tenet of the Zambian legal system is the adversarial system of adjudication for both criminal and civil proceedings. The appeals for the Tribunals fall to the Court of Appeal. In the case of Musakanya V Attorney-General (S.C.Z. Civil actions involving substantial disputes of fact are commenced by way of a writ. He can give an opinion on facts which are admitted or proved by him or other witnesses in his hearing at the trial. 6.  (1)  On issuing the originating notice of motion by which an application under section four of the Act for a new tenancy is made the applicant must file an affidavit verifying the statements of fact made in the notice of motion. For example, the court can grant the following: an award of damages (typically a sum of money to a person as compensation for loss or injury); prerogative orders under Judicial Review; specific performance under contract law; orders for interpretation of statute; orders for breach of contract and tortious liability; declaratory orders; declarations ascertaining the rights of litigants; and declaratory orders for interpretation of statute. OF BUSINESS PREMISES. documents available in the public domain. What are the cost consequences? (3)  The persons referred to in subsection (2) are, in relation to the tenant of any premises-, (a)        any person having an interest in the premises, being an interest in reversion expectant (whether immediate or not) on the tenant's; and. 24.    Anything authorised or required by the provisions of this Act, other than subsection (2) or (3) of section twenty-one, to be done at any time by, to or with the landlord, shall, if at that time the interest of the landlord in question is subject to a mortgage and the mortgagee is in possession or a receiver appointed by the mortgagee or by the court is in receipt of the rents and profits, be deemed to be authorised or required to be done by, to or with the mortgagee instead of that landlord. Order 6 Rule 1 of Statutory Instrument No. The appellant must therefore file the Record of Appeal within 60 days of the filing of the Notice of Appeal and Memorandum of Appeal. What are the main criteria for obtaining these? An application for contribution is available in tortious liability claims. Compensation where order for new tenancy precluded on certain grounds. Writ of Summons (Order 6 of the Rules of Court) A Writ of Summons is a formal document addressed to the defendant requiring him to enter an appearance if he wishes to dispute the plaintiff’s claim. 15(3)(b) of the Constitution, which has not been decided by this Court before. The Constitutional Court has original and final jurisdiction to hear a matter relating to the interpretation of the Republican Constitution and matters relating to the violation of the Republican Constitution. However, upon the lodgement of a Notice of Discontinuance, the plaintiff may be liable to bear the costs of the proceedings. Lastly, Order 24 Rules 1 and 2 (24/2/3) of the Rules of the Supreme Court (the White Book) 1999 Edition, Volume 1 note that the meaning of “documents” is not restricted to paper writings, but extends to anything upon which evidence or information is recorded in a manner intelligible to the senses or capable of being made intelligible by the use of equipment. The Zambian courts subscribe to the English law doctrine of freedom of contract. (c)        there are no other persons with interests in the property who are likely to be affected. (3)  The court shall fix the date (which date shall not in any case be earlier than the date of commencement of the tenancy) from which the rent so determined under subsection (1) shall be payable by the tenant, and any sum paid in excess of the rent so determined shall be recoverable from the landlord who received the payment, or from his legal personal representative, by the tenant who paid such sum; and any such sum, and any other sum which, under the provisions of this Act is recoverable by a tenant from a landlord or payable or repayable by a landlord to a tenant, may, without prejudice to any other method of recovery, be deducted by the tenant from any rent payable by him to the landlord. These set out the core facts that constitute the cause of action. The court, however, can grant an interim relief to facilitate an arbitral tribunal discharging its functions. Is it possible to obtain disclosure pre-action? 3.3        What are the main elements of the claimant’s pleadings? Thus, when presented with a determination on an exclusive clause, the Zambian court is likely to be persuaded by the English position to the extent consistent with Zambian legislation. These originating documents set out a claimant’s claim in brief and the relief sought. 8.1        What are the basic rules of evidence in your jurisdiction? Use Form 5B – Originating Motion Between Parties when initiating a proceeding where there is a defendant. However, the courts or judges enjoy a wide discretion in determining the question of costs. On the same day, the applicant also filed an interlocutory motion which essentially seeks the same relief as that requested in items 2 and 3 in the originating notice of Motion. Unlike other civil proceedings in Zambia, the Commercial Court requires written witness statements to be filed at Court and exchanged by parties prior to the trial. 8.4        Are there any particular rules regarding instructing expert witnesses, preparing expert reports and giving expert evidence in court? In this respect, where the parties have agreed to grant exclusive jurisdiction to a particular court, the court will readily enforce such an agreement provided the claim is not illegal or contrary to public policy. 6.5        Can the civil courts in your jurisdiction enter summary judgment? Foreign judgments in this jurisdiction are enforceable pursuant to the provisions of the Foreign Judgments (Reciprocal Enforcement) Act, Chapter 76, Volume 2 of the Laws of Zambia. However, the British Limitation Act, 1939 is subject to amendments by the Zambian statute called the Law Reform (Limitation of Actions, Etc. Are there any classes of documents that do not require disclosure? 9. 58 of 2020 of the High Court (Amendment) Rules requires that a Writ of Summons must now be accompanied by a statement of claim, list of documents, list of witnesses to be called by the plaintiff and a letter of demand. The reference to mediation by a court is an order, and as such, parties cannot refuse to go for mediation. The courts admit oral or parole evidence (witness testimony), which is usually complemented by documentary evidence. The Record of Appeal should contain all the documents that were relied upon by the parties in the court bellow. Arbitration/Mediation/Expert Determination/Tribunals (or other specialist courts)/Ombudsman? Is there anything that is particular to your jurisdiction in this context? Zambia’s legal system is based on the English legal system. This could be by way of writ of summons, originating summons, originating notice of motion, petition, notice of claim, appeal, notice of complaint or default writ of summons filed into court by the plaintiff as provided under the respective rules of the particular court. Time for service of notice 18.5. (a)        what premises are comprised in the sub-tenancy; (b)        if the sub-tenancy is for a fixed term, what is the term, or, if the sub-tenancy is terminable by notice, by what notice it can be terminated; (c)        the rent payable under the sub-tenancy; (d)        the full name of the sub-tenant; (e)        whether, to the best of your knowledge and belief, the sub-tenant is in occupation of the premises sub-let to him or any part thereof and, if not, what is the sub-tenant's address. The court may discontinue the proceedings at the option of the party who has sued. In order to service the foreign court process, Order X Rule 23 provides that the English court should author a letter of request for service which will then be transmitted to the Minister of Foreign Affairs in Zambia, and if the Minister finds the letter of request desirable, it shall be transmitted to the High Court for Zambia by the Permanent Secretary in the Ministry of Foreign Affairs. ICLG - Litigation & Dispute Resolution Laws and Regulations - As a general rule, hearsay evidence is inadmissible, except under the exceptions under English law such as res gestae, dying declarations, etc. However, in 2002, the High Court Practice was limited to English procedure provided in the Rules of the Supreme Court 1965 (The White Book), in particular in the 1999 Edition. The plaintiff is at liberty to apply to enter a judgment on admission if a defendant lodges a statement of defence falling in the realm of bare denials. The service is effected on behalf of the court by the sheriff or his bailiffs by delivering it to the requisite address of service and leaving the person/entity to be served with one copy, pursuant to the provisions of the Sheriffs Act, Chapter 37, Volume 4, of the Laws of Zambia. For example, in Muliango and Another v. Masaga and Another, the learned trial judge found that the defence furnished by the first defendant appeared to be valid and would succeed if sufficiently supported by evidence. These include the Lands Tribunal (“LT”), Tax Appeals Tribunal (“TAT”) and the Competition and Consumer Protection Tribunal (“CCPT”). There are two recognised arbitral institutions, namely the Zambia Association of Arbitrators (“ZAA”) and the Chartered Institute of Arbitrators Zambia Branch (“CIArbZB”). Dentons Eric Silwamba, Jalasi and Linyama, Dentons Eric Silwamba, Jalasi and Linyama, The International Comparative Legal Guides and the International Business Reports are published by: Global Legal Group, We are a legal department covering whole of Europe. (b)        the tenant is willing to accept a tenancy of an economically separable part of the holding and either paragraph (a) is satisfied with respect to that part or possession of the remainder of the holding would be reasonably sufficient to enable the landlord to carry out the intended work. As earlier stated in section 1, civil proceedings are commenced by a party instituting an action depending on the cause of action and rules of a particular court. 64.Notice of originating motion (O. The Constitution of Zambia creates the three arms of government, namely, the Executive, Legislature and the Judiciary. Therefore, refusing to reach agreement through mediation attracts no sanctions. Form 67 - Application for Judicial Review. 54 r5. It is important to note that there are few cases, if any, where the Courts have overridden an exclusive clause in a contract. Notice to be personally served on persons who have not entered appearance 18.6. (4)  A court may deduct 21/2per centum commission on rent paid into court by a tenant. (c)        apart from this section, the effect of the notice or request would be to terminate the tenancy before the expiration of the period of three months beginning with the date on which the application is finally disposed of; the effect of the notice or request shall be to terminate the tenancy at the expiration of the said period of three months and not at any other time. Hearing of interlocutory applications 18.7. If so, at what stage and in what circumstances? Most specialised contracts prefer arbitration because it is quicker, and the parties can get an expert in the subject area of the contract to arbitrate. 11.5      How binding are the available methods of alternative dispute resolution in nature? However, these measures are administrative and are revisited from time to time by the Chief Justice. An appeal from the Court of Appeal lies to the Supreme Court with leave of the Court of Appeal. Originating Process Where necessary, the defendant has a right to challenge the jurisdiction of the court. There are also specialist tribunals which have the same judicial ranking as the High Court. Dentons Eric Silwamba, Jalasi and Linyama, Lubinda Linyama If so, in what circumstances? The principle in Zambia is that a debt can be assigned as per usual law of contract. See UCPR Part 18.     4.    This request is made under the provisions of section 6 of the Landlord and Tenant (Business Premises) Act. There has been an increase in the use of arbitration, mediation and tribunals by litigants in Zambia. The contents of the witness statement serve as examination in chief, meaning the witnesses proceed to cross-examination without delay. 9.    Where the landlord and tenant agree upon the grant to the tenant of a future tenancy of the holding, or of the holding with other land or premises on terms and from a date specified in the agreement, the current tenancy shall continue until that date but no longer, and shall not be a tenancy to which the provisions of this Act apply. (2)  In this section, the expression "the landlord" means the person applying for possession or opposing an application for the grant of a new tenancy, and the expression "the tenant" means the person against whom the order for possession was made or to whom the grant of a new tenancy was refused. Order by court for grant of a new tenancy. Originating notice definition is - a notice the service of which begins a legal proceeding. This procedure is the same in all the other Zambian courts. The circumstances in which a third-party notice can be issued by a defendant against a person who is not already a party to an action are: (a) where a defendant who has given notice of its intention to defend claims against a person not already party to the action; or (b) where a defendant claims against such a person any relief or remedy relating to or connected with the original subject matter of the action and which is substantially the same as some relief or remedy claimed by the plaintiff. The respondent has the right to respond by filing the “Respondent’s Heads of Arguments”. (2)  A tenancy granted for a term of years certain which is continuing by virtue of section four may be brought to an end on the first day of the month next following the expiry of not less than three months' notice in writing given by the tenant to the immediate landlord, whether the notice is given before or after the date on which, apart from this Act, the tenancy would have come to an end. Application for extension of time under section 10 (4) of the Act. Are there any particular rules regarding concurrent expert evidence? (2) Sub-rule (1) shall not apply to an arrangement or association with a person who solicits or receives contingency fees only in respect of proceedings in a country outside Zambia, to the extent that a local lawyer in that country would be permitted to receive a contingency fee in respect of such proceedings.”. In an affidavit in opposition to originating notice of motion for judicial review, University of Zambia registrar Sitali Wamundila said the remarks uttered by Mambwe that ‘only idiots or those enjoying with PF would vote for them if elections were held today’, incited industrial disharmony. (b)        whether you have a sub-tenant of the whole or any part of the premises. 16 of 1997 states that: “Every judgement, order of decree of the High Court or of a subordinate court whereby any sum of money, or any costs, charges or expenses, is or are to be payable to any person shall carry interest from time to time of entering such judgement, order, or decree until the same shall be satisfied, and such interest may be levied under writ of execution on such judgement, order or decree.”. The Local Courts are courts that administer customary law, usually restricted to traditional disputes. The successful party at the trial any constraints to assigning a claim or cause of action own costs. ” “. 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