INTRODUCTION

Civil procedure rules are define by the Black’s Law Dictionary1 as rules that prescribe the steps
for having a right or duty judicially enforced, as opposed to the law that defines the specific
rights or duties themselves. John Salmond2 further articulates that the law of procedure defines
the modes and conditions of the application of the one to the other. From the afore cited
definitions, it is clear that procedural law encompasses the steps that a litigant has to satisfy in
order to obtain the remedies or reliefs sought that if from commencement of court process until
the verdict of the matter is pronounced.

Therefore, Court rules are an integral part of administration of justice in ensuring that cases are
handled fairly and just. The importance of court rules were pronounced in the case of NFC
Mining PLC v Techro Zambia Limited3 In the Zambian legal system, these rules have to be in
conformity with the Constitution of the land as any other law inconsistence with its provisions
shall be declared null and void to the extent of the inconsistency, this position was espoused in
the case of Mulundika and 7 Others v The People4

Before the enactment of the Constitution on 5th January, 2016, the position of the Supreme Court
in Zambia was always that matters before court ought to be decided on merits as opposed to
being prematurely terminated on a procedural technicality and that this was so even in the face of
obvious irregularities. The enactment of Article 118(2) (e) of the Constitution has simply
constitutionalized the long line of decided cases in this regard. In the Zambian legal system, this
provision serves to guide the courts in their exercise of judicial authority, particularly in civil
cases. It implies that the courts should focus on achieving fair and just outcomes for the parties
involved, rather than being overly strict in adhering to procedural rules and technicalities. This
aligns with the broader objective of promoting access to justice and ensuring that cases are
decided on their merits. This paper aims to discuss the import of Article 118(2) (e) of the
Zambian Constitution.

1
Black’s Law Dictionary, edited by Brian A. Garner, 10th edition at page 1398
2
John Salmond, Jurisprudence by Glanvile L. Williams, 10th edition, 1947
3
(2009) Z.R. 236.
4
(1995-1997) Z.R. 20.
Article 118(2) (e)5 provides that “in exercising judicial authority, the courts shall be guided by
the following principals: e) justice shall be administered without undue regard to procedural
technicalities.

It is imperative to give meaning to the phrase ‘undue regard to procedural technicalities’ used in
Article 118(2) (e), the word ‘procedure’ is defined by the Black’s Law Dictionary6 as a specific
method or course of action or the judicial rule or manner for carrying on a civil lawsuit.

The Concise Oxford English Dictionary7 defines the term ‘technicality’ as a point of law or
small detail of a set of rules as contrasted with the intent or purpose of the rules.

From the above definition, it can be deduced that the phrase undue regard to procedural
technicalities simply means placing excessive reliance on or giving heed to a minor detail or
point of law which is part of a broader set of rules that govern the manner in which court
proceedings are to be conducted which does not go to the core of the whole court process.

The constitutional Court guided very clearly in the case of The People v The Patents and
Companies Registration Agency8 regarding the import of Article 118 (2) (e) that ‘undue regard
to procedural technicalities’ simply means placing excessive reliance on or giving heed to a
minor detail or point of law which is part of the broader set of the rules that govern the manner in
which court proceedings are to be conducted which does not go the core of the whole court
process. Therefore, the question that follows is what is the import of the provision of Article 118
(2) (e) of the constitution? What mischief did the formers of the constitution intend to forestall
by enacting Article 118 (2) (e)?

The Court had the occasion to interpret and give meaning to Article 118 (2) (e) in the case of the
case of Henry Kapoko v The People9 when it stated that:-

“Article 118 (2) (e) is not intended to do away with existing principle laws and procedures,
even where the same constitute technicalities. It is intended to avoid a situation where a
manifest injustice would be done by paying unjustifiable regard to a technicality. Article
118 (2) (e) was not meant to do away with laid down rules of procedure for conducting

5
The Constitution of Zambia Chapter 1 of the Laws of Zambia (Amendment) No. 2 of 2016
6
IBID
7
The Concise Oxford English Dictionary, 11th Edition, revised
8
The People v The Patents Companies Registration Agency Ex-Parte Finsbury Investment Ltd 2017/CCZ/R003
Selected Judgment No. 28 of 2018
9
2016/cc/0023
cases as these ensure predictability and uniformity of court procedure and processes. The
Article is meant to avoid manifest injustices that would otherwise ensue from giving
unjustifiable regard to procedural technicalities.

This Article in fact injoints, enjoins all the courts in Zambia which are thus bounding that
provision, not to give undue attention to all pertinent factors that have a bearing on the
cases and not to impede the administration of justice.”

Further, in Raila Odinga and 5 others v Independent Electrol and boundaries Commission
and 3 Others10 the Supreme Court of Kenya in interpreting Article 159 of the Kenyan
Constitution which is expresses the similar provisions as Article 118 (2) (e) of the Zambian
Constitution, held that the essence of the provision is that a court of law should not allow the
prescription of procedure and form to trump the primary object of dispensing substantive justice
to parties…. The court as an agency of the process of justice, is called upon to appreciate all the
relevant circumstances and the requirements of a particular case, and consistency determine the
best outcome.
In view of the above cases, Article 118(2) (e) was put in place to safe guard the interests of
justice in the face of curable procedural short comings. Therefore, Article 118 (2) (e) is not
intended to do away with existing principles, laws and procedures, even where the same
constitute technicalities but, is intended to avoid a situation where a manifest injustice would be
done by paying unjustifiable regard to technicalities. Thus, the import of Article 118(2) (e) is
consistent with similar principles observed in Commonwealth jurisdictions. Many
Commonwealth countries also prioritize the fair and just resolution of disputes, and courts are
often guided by similar principles that emphasize substantive justice over procedural
technicalities.

It is also imperative to note that Article 118 (2) (e) is a guiding principle of adjudication framed
in mandatory terms. It is a basic truth applicable to different situations. The Article’s beneficial
value is achieved well if it is applied in an eclectic fashion depending on the nature of the rule
before it. For example, Order 53 of the Rules of the Supreme Court, 1965 11 requires that one

10
(Consolidated) Petition No. 5 of 2013
11
Rules of the Supreme Court of England, (White Book) 1999 Edition
cannot move the court for judicial review without the permission of the court, which permission
maybe granted or refused at the court’s own discretion. As such, the refusal to grant leave entails
that the application will never be heard and decided on its merit by the court, however, will be
terminated without their merits being interrogated by the courts. On the other hand, he
requirement for leave in judicial review proceedings is not considered unjust, it a necessary step
for the court to determine if a matter is worth hearing.

Law Society of Kenya v the Centre for Human Rights and Democracy and 12 others 12 the
court saved an Appeal from waste that occasioned by failure to observe one limb of a procedural
rule. The court stated that “Article 159 (2) (d) of the constitution is not a panacea for all
procedural short falls. All that the courts are obliged to do is to be guided by the principles
that injustice shall be administered without undue regard to technicalities. It is plain to us
that Article 159 (2) (d) is applicable on a case to case basis”

In view of the above case and in relation to the Zambian Constitution, Article 118 (2) (e) Article
is a guiding principle of adjudication framed in mandatory terms. It is a basic truth applicable to
different situations. The Article’s beneficial value is achieved well if it is applied in an eclectic
fashion depending on the nature of the rule before it as demonstrated by the Supreme Court of
Kenya

In Copper v Smith13 the court had this to say: “it is a well-established principle that the object
of the court is to decide the rights of the parties and not to punish them for the mistakes
they make in the conduct of their cases, by deciding otherwise than in accordance of their
rights. Thus, Article 118(2)(e) is significant in the context of civil procedure in Zambia as it
reflects the intention to prioritize substantive justice over procedural formalities.”

In the context of civil procedure in Zambia, the import of this constitutional provision implies
that courts should adopt a pragmatic and flexible approach to procedural matters, with a focus on
achieving fair and just outcomes for all parties involved in civil litigation. This may involve the

12
Petition No. 14 of 2013
13
(1930) 209 Cal 562
courts exercising discretion to overlook minor procedural irregularities in the interest of
substantive justice, thereby promoting efficiency and fairness in the resolution of civil disputes.

On the other hand, this provision may prove problematic as litigants may rely on it unnecessarily
as an excuse for flouting court processes and procedures. The issue which the Constitutional
Court had to consider in part, in the Henry M. Kapoko14 case, was the contention by the
Applicant that since the passing of Article 118 (2) (e), the rules in sections 207 and 208 of the
Criminal Procedure Court (CPC‟) prescribing that an accused person’s testimony must precede
that of his witnesses, need not be adhered to. The rigid adherence to the rules offends Article 118
(2) (e) and hindered enjoyment of the right to fair trial. In response to this, the respondent argued
that procedural rules and even technicalities are part of the legal system and are there in order to
facilitate the administration of justice.

The Constitutional Court found that Article 118 (2) (e) is relevant to the administration of rules
because our Constitution is the means of ensuring the validity, and to a large degree, the
legitimacy of all our rules. The Court referred to Kelsen’s theory of a legal order as a system of
legal norms derived from the basic norm.

It is trite law that Civil Procedure Rules are enacted to govern the methods and practice used in
civil litigation. This is in consonance with Section 44(1) of the High Court Act, Chapter 27 of
the laws of Zambia which states that:-

“……the rules of court may be made for regulating and prescribing the procedure
(including the method and pleading) and practice to be followed in the court in all cases
and matters”

In the same vein, the Supreme Court has emphasised in a plethora of cases the importance of
complying with the Rules of Procedure and has warned against the effect of laxity in their
application especially on account of hearing matters on merits. In the case of Access Bank
(Zambia) Limited and Group Five/Zcon Business Park Joint V Joint Venture 15 (unreported)
Honourable Mr. Justice Malila16 stated the following:-

14
2016/cc/0023
15
SCZ/8/52/2014 (unreported)
16
Page 24
“Matters should as much as possible, be determined on their merits rather than be
disposed of on technical or procedural points. This, in our opinion, is what the ends of
justice demand. Yet, justice also requires that this court, indeed all courts, must never
provide succor to litigants and their counsel who exhibit scant respect for rules of
procedure and timeless service to make the process of adjudication fair, just, certain and
even-handed. Under the guise of doing justice through hearing matters on their merit,
courts cannot aid in the bending or circumventing of these rules and shifting goal posts, for
while laxity in application of the rules may seem to aid one side, it unfairly harms the
innocent party who strives to abide by the rules.”

Similarly, in NFC Mining PLC v Techro Zambia Limited 17 the court stated that “We warned
that failure to comply with court rules by litigants could be fatal to their case”

This study agrees with this interpretation of the Constitution Court with respect to Article 118 (2)
(e) because with this interpretation, the Court will consider the circumstances of each case before
deciding whether the rule in question can indeed be done away with as a procedural technicality.
The important point to note here is that the rule is not intended to do away with the important
point to note here is that the rule is not intended to do away with existing rules even where the
same are necessary for the orderly administration of justice.
In Sikalengwe v Luke Chisha Sepherine and the Electrol Commission of Zambia 18 the court
made it clear that an Appellant cannot hide behind Article 118(2) (e) for his failure to comply
with the rules of court in preparing and compiling the record of proceedings.

Consequently, the rules of the court are intended to assist in the proper and orderly
administration of justice and as much, must strictly be followed. Non - compliance to procedural
rules cannot be justified on the administration of justice without due regard to procedural
technicalities. In accordance with Article 118 (2) (e), the Court is further enjoined to administer
justice without undue regard to procedural technicalities. In this way, it must consider Article
118 (2) (e) by following the said prescribed processes and procedures without undue regard to
procedural technicalities.

17
(2009) ZR 236
18
Appeal No. 5 of 2016
CONCLUSION
In a nutshell, procedural law encompasses the steps that a litigant has to satisfy in order to
obtain the remedies or reliefs sought. Therefore, the import of Article 118(2) (e) is consistent
with similar principles observed in Commonwealth jurisdictions. Many Commonwealth
countries also prioritize the fair and just resolution of disputes, and courts are often guided by
similar principles that emphasize substantive justice over procedural technicalities.

In the Zambian legal system, this provision serves to guide the courts in their exercise of judicial
authority, particularly in civil cases. It implies that the courts should focus on achieving fair and
just outcomes for the parties involved, rather than being overly strict in adhering to procedural
rules and technicalities. This aligns with the broader objective of promoting access to justice and
ensuring that cases are decided on their merits.

However, the constitution never means to oust the obligation of litigants to comply with our
procedural imperatives as they seek justice from the courts. Thus, litigants should never hide
behind Article 118 (2) (e) for failure to comply with the laid down rules of procedure.
REFERENCES
LEGISLATION
The Constitution of Zambia Chapter 1 of the Laws of Zambia as amended by the Constitution of
Zambia (Amendment) Act No. 2 of 2016

Rules of the Supreme Court of England, (White Book) 1999 Edition

Statutory Instrument No. 58 of 2002 High Court Rules, Chapter 27, Volume 3 of the Laws of the
Laws of Zambia

CASES
Henry Kapoko v The People (2016) CC/0023

Copper v Smith (1930) 209 Cal 562

B.P Zambia Plc v Zambia Competition Commission, Total Aviation and Export Limited and
Total Zambia Ltd (2001) Z.R 222

NFC Mining PLC v Techphro Zambia Limited (2009) ZR 236

Access Bank (Zambia) Limited and Group Five/Zcon Business Park Joint V Joint Venture

Sikalengwe v Luke Chisha Sepherine and the Electrol Commission of Zambia

Law Society of Kenya v the Centre for Human Rights and Democracy and 12 others, Appeal No.
14 of 2013

Ram Auerbach v Alex Kafawata No. 65 of 2000

OTHER MATERIALS REFERED TO

Black’s Law Dictionary, edited by Brian A. Garner, 10th edition