UNIT 1

• Introduction to law cont’d

 Sources of Law
• In its simplest terms, the phrase “sources of law” simply refers
to the various materials from which the law that we use is
taken i.e where does the law come from?
 Common Law
• This law derived from general custom of the English people.
• It developed in medieval times when English kings established a
system of central codes to administer justice throughout the land.
• The law that they administered was common to the entire kingdom
and it became known as common law.
• Over a period of time the common law became a very rigid system of
law and in many cases it was impossible to obtain justice from the
courts.
 Some problems with the Common Law
• The writ system was slow to respond to new types of action. If a
suitable writ was not available, an injured party could not obtain a
remedy, no matter how just his claim.
• The writ system was very complicated, but trivial mistakes could
defeat a claim.
• The only remedy available in the common law courts was an award
of damages.
• Men of wealth and power could overawe a court, and there were
complaints of bribery and intimidation of jurors.
 Equity

• By the 15th century the Chancellor had started to hear petitions

on his own and the Court of Chancery was established. The body
of rules applied by the court was called equity.
• Equity is a body of rules which seek to advance what is ‘just’ and
‘fair’ in the circumstances of each case. For this reason, equity is
said to denote ‘natural justice’.
• Equity developed as a result of defects in the common law. The
importance of the doctrine of equity is that whenever there is a
conflict between law and equity, the latter prevails.
 Acts of Parliament

• Legislation is also referred to as statutory law and covers those rules

of law made directly by the legislature. e.g Higher Education Act Cap
4 of 2013
 Delegated Legislation
• Parliament is entitled to delegate its law-making
powers to the ministers, local authorities and other
state institutions.
• When these authorities exercise this delegated
power, they create what is called ‘delegated
legislation’ (subsidiary legislation) that is embodied
in specialized legal documents called ‘statutory
instruments’.
 The Constitution
• The Constitution is itself an Act of Parliament but it is superior to all
other Acts of Parliament.

• Any law which is inconsistent with the Constitution will be void to the
extent of the inconsistency

• The reason why any Constitution is given this special place in the
hierarchy of laws is that, in principle, it is considered to be the word
of the people themselves.
 Judicial Decisions/ Judicial Precedent
• A judicial precedent is where past decisions create law for judges to
refer back to for guidance in future cases
• Precedent is based upon the principle of stare decisis, meaning to
“stand by decided matters”.
• Lower courts must follow the precedent established by higher
courts.
• The only part of the judgment which binds subsequent courts is the
ratio decidendi.
 Judicial Decisions/ Judicial Precedent
• The doctrine of state decisis promotes uniformity of law within a
jurisdiction, makes the court system more efficient and makes the
law more predictable for individuals and businesses.
• BUT
• a) Brings in a measure of inflexibility in the law
• b) Resists change needed to meet new conditions
• STILL, occasional overruling of cases ensures some growth in the
development of the law.
 Judicial Decisions/ Judicial Precedent
• If the party is unhappy with the decision, that party can appeal to a
higher court. On appeal, the court studies the typed record of the
court a quo and then listens to arguments made by the legal
representatives.
• When the appeal is upheld, it means the decision of the court is
confirmed.
• In criminal matters an appeal may be lodged against conviction,
against sentence or both.
 Customary Law
• The combination of the two words to form customary law
simply means the law derived from custom.
• Custom itself is a rule of conduct obligatory on those within its
scope, established by long usage.
• Customary law is unwritten, it is informal and flexible.
• It is kept and transferred from generation to generation
through oral traditions. Since it is not written down, it is
difficult to study and can consequently be hard to know it.
• Still very useful in areas of land holding, marriage and intestate
• succession or inheritance.
 Scholarly Works
• Writings by leading authorities in the field of law

• Though these have no inherent authority of their own, they

may be regarded as very persuasive sources of law where
neither legislation nor case law is in point, or where they are
explaining a legal point which is not clearly covered in
legislation or case law.
 International Law
• International law may be described as a body of rules that
determine how sovereign States conduct themselves towards
each other and towards each other’s subjects.

a). Customary international law (jus cogens)

b). Bilateral or multilateral agreements (domestication and
ratification)
 Exercise
• Which sources are primary and which ones are
secondary? Substantiate.
 The Zambian Judicial System
• Superior Courts
• SUPREME COURT and CONSTITUTIONAL COURT
• COURT OF APPEAL
• HIGH COURT (AND DIVISIONS)
• Subordinate courts
• MAGISTRATES COURT
• SMALL CLAIMS COURT
• LOCAL COURTS
 The Zambian Judicial System

• The Local Courts in Zambia stand at the bottom of the Judiciary

hierarchy on:
• The African customary law applicable to any matter before it in so far as
such law is not repugnant to natural justice or morality or incompatible
with the provision of written law.
• The provisions of all by-laws and regulations made under the provisions
of the Local Government Act and in force in the area of jurisdiction of
such Local Courts, and
• The provisions of any written law which such Local Court is authorized
to administer under the provisions of Section thirteen.
• Local Court may also handle minor criminal cases, tort and simple
contracts as may be directed by the Chief Justice.
 Small claims court

Who?
Anyone except registered entities such as companies, corporation or
associations.
A person under the age of 21 must be assisted by his/her parents or
legal guardians.
Against anyone, including companies, corporations or municipalities or
other entities.
 Small claims court

• Cannot hear:
• Claims that exceed the limit of K 20,000.
• Claims for damages in respect of defamation, wrongful
imprisonment, wrongful arrest, adultery and seduction.
• Claims concerning the validity of a will
• Claims made under customary law.
• Claims in which specific performance is sought without an
alternative claim for payment of damages.
• Claims against foreign states and consular officers
 Magistrates Court
• Has jurisdiction:
• To hear and determine civil suits and criminal cases;
• To administer oaths and affirmations;
• To visit prisons as justices of peace;
• To make such orders and decrees as may be required by law; and;
• To hear appeals from the Local Courts.
 High Court
• The High Court has the following divisions; Industrial Relations
Court, the Commercial Court, the Family and Children’s Court.

• The High Court has:

• Unlimited and original jurisdiction in civil and criminal matters.

• Appellate and supervisory jurisdiction, as prescribed, and
• Jurisdiction to review decisions, as prescribed
 High Court Divisions

• The Family And Children’s Division-The Family and Children’s Division exercises
jurisdiction in all family and children’s matters exercisable by the High Court.
• Petitions for divorce;
• Petitions for judicial separation;
• Custody of children disputes;
• Applications for maintenance orders;
• Applications relating to willful neglect to maintain children;
• Applications relating to property adjustment;
• Intestate succession disputes;
• Wills and administration of estates;
• Affiliation and adoption orders;
• Appeals from the Subordinate Courts in all family and children’s matters
 High Court Divisions

• The Industrial Relations Division

• generally adjudicating upon any matter affecting the collective
rights, obligations and privileges of employees, employers and
representative organizations.
 The Commercial Court
• It is a fast-track Court for the business community.
• The Division is specialized at resolving cases arising from
commerce, trade, industry and any transactions of a business
nature.
• Has special Rules of the Court are found under Order LIII of the
High Court Rules, Chapter 27 of the Laws of Zambia.
• The Rules have strict time frames within which certain actions and
steps should be taken.
• Order LIII has sanctions which are meant to make the parties move
with all the speed required to dispose of the cases as quickly as
possible.
 Some special features of The Commercial Court
• Each statement of claim or counter-claim must state in clear terms
the material facts upon which a party relies and must show a clear
cause of action, failing which the statement of claim or counter-claim
may be struck out, set aside or the action may be dismissed.
• The defence must specifically traverse every allegations of fact
otherwise it will be deemed to be an admission.
• Judges of the Court conducts scheduling and status (compliance)
conferences and whatever directions the judge issues must be
adhered to strictly.
• Judges also hear all interlocutory applications in this Court.
 The Commercial Court
• Filed witness statements are treated as evidence-in-chief of the
witness as they contain all the facts relevant to the party’s case
thereby serving time.
• The Rules are very strict on adjournments as they provide that a
Judge shall not grant an application for an adjournment except in
compelling and exceptional circumstances.
 The Commercial Court
• In the Commercial Court, failure to attend a hearing without
justifiable cause results in the party so absent to be condemned
in hearing fees and costs and this may also result in dismissal of
an action. A party to an action may also apply to a Judge to
dismiss an action if sixty days elapse without progress being made
on the case after the action is filed.

• Further, it is a requirement that every interlocutory application in

the Court be supported by a list of authorities and skeleton (brief)
arguments, stating the facts and law and copies of authorities
relied upon must be supplied wherever possible.
 The Court of Appeal
• It is now the second highest Superior Court of Record after the
Supreme Court and the Constitutional Court of Zambia.

• It hears appeals from the High Court

 The Court of Appeal
• An appeal from a judgment of the Court lies to the Supreme Court
with leave of the Court. An application for leave to appeal, under
subsection (1) is made within fourteen days of the judgment. The
Court may grant leave to appeal where it considers that:

• The appeal raises a point of law of public importance;

• It is desirable and in the public interest that an appeal by the person
convicted should be determined by the Supreme Court;
• The appeal would have a reasonable prospect of success; or
• There is some other compelling reason for the appeal to be heard.
Leave to appeal does not operate as a stay of execution of a judgment.
 Supreme Court
• Except for Constitutional matters, which are reserved for the
Constitutional Court, the Supreme Court is the final court of appeal,
and has appellate jurisdiction to hear appeals from the Court of
Appeal. It also has jurisdiction that may be conferred by law.

• The Supreme Court of Zambia ranks equivalently with the

Constitutional Court
 Constitutional Court
• Has original and final jurisdiction to hear and determine:
• Matters in respect of interpretation of any provision of the
Constitution
• Any matters relating to the election of the President and Vice
president
• Any matters relating to appeals on petitions of election of Members
of Parliament and Councillors
• Matters to determine whether an issue is a Constitutional issue or
not
 Constitutional Court
• Since the referendum that sought to amend and enhance the Bill of
rights (and repeal and replace Article 79 failed) enforcement of
violation of Human Rights as enshrined in the Bill of Rights, that is
under part three of the Constitution, is within the Jurisdiction of the
High Court in accordance with Article 28 of the Constitution of
Zambia.
 Alternative Dispute Resolution
• Read up on the following:
• Negotiation
• Conciliation
• Mediation
• Arbitration

• How do you think they apply to business/commercial

transactions?