University of Africa Faculty of Law

L100 Module: Legal Process

2013 Adv. Justin Sipho Chitengi1

DAAD Scholar; PhD Candidate- Law & Policy(UNILUS); LLM(UWC/HU); LLB Merit (UNZA); BSc Forestry(CBU); PGC Public Policy(AU); CPD Conveyancing(LAZ); PGC LPQE(ZIALE); CETP Entrepreneurship(Northlink); AHCZ(High/Supreme Court)

Formerly the Founding Assistant Dean of the Law School- University of Lusaka, Adv. Chitengi is a seasoned teacher of law and renowned researcher as well as publisher. He has lectured both in public and private universities in Zambia and abroad including the University of Zambia and the Copperbelt University among others. He also served as Postgraduate Researcher on Financial/Economic Crimes Law at the German-South African Centre of Excellence, a collaboration between Humboldt Universitt zu Berlin & University of the Western Cape. Chitengi was appointed by the then Republican Vice President & Minister of Justice in 2011 to serve as a Council Member of the Zambia Institute for Advanced Legal Education (ZIALE) - the only Bar School in Zambia. He is currently in the employ of John Snow Inc. Ltd (SHAReII Project), a USAID-funded project where he practices law as Legal and Policy Manager. Adv. Chitengi is a recipient of many prestigious scholarships and fellowships both locally and internationally in recognition of his contribution to the legal fraternity.

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Course Introduction
This course is the foundation of legal studies as it introduces you to the general principles of learning the law. It is not necessary a stand- alone branch of law, but is a cross-cutting course in all the other law courses that you will undertake.

Module Objectives
This module aims at laying a strong foundation for new learners of law who are being introduced to the study of key concepts in law. It endeavours to prepare you for the future of solving legal problems.

Expected Module Outcomes

On completion of studying this module you should be able to, inter alia: i. Demonstrate clear understanding and definition of key concepts and principles of law; ii. Understand the key legal and institutional frameworks governing the administration of justice; iii. Explain the relationship and professional interaction between lawyers and the courts; iv. v. Understand the major legal systems of the world; Trace the historical development of the English legal system and it impact on the Zambian legal system;

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vi. vii. viii. ix.

Identify the key techniques of alternative dispute resolution; Appreciate the correlation between law and society; Identify and explain the various rules of statutory interpretation; and Explain the major approaches in solving legal problems.

Duration
You are expected to complete studying this module in one academic semester averaging 5 months.

Study Tips
i. As you go through this module you will come across margin icons (gavels and scales of justice) that serve as signposts. These icons are intended to assist you navigate through the module; ii. There are several activities interspaced in the learning activities that will allow you to reflect on the topics in each unit; iii. At the end of each unit you will find a number of revision questions to self-assess your level of understanding a particular unit before you proceed to the next unit; iv. Various case studies are given under each unit for you to familiarise yourself with how lawyers identify legal issues from a given set of facts and apply the law to the identified legal issues as they help the courts to pass judgements; v. Few past examination questions have been reproduced at the end of the module for you to assess your preparedness for examination in this course; and

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vi.

A list of prescribed and recommended reading materials has been attached to supplement your reading. Make efforts to secure for yourself at least a copy of the prescribed texts

Study Skills
As espoused by Gay, Learning by study must be won; Twas ne er entailed from son to son.2 You are personally responsible for your study- time management as the institution will only manage your study programme during the residential school period according to the school calendar. Therefore, you should balance your use of time, learn to cope with academic pressure in strictly meeting the deadlines for submission of assignments and familiarise yourself with rules of writing legal essays.

Do You Need Help?

If you need help, extra information or have any queries concerning this module, kindly get in touch with the Course Coordinator through the University regional offices nearest to your location. Where it is exceptionally necessary, you may directly consult the lecturer or the driver of this module outside the scheduled residential classes on +260 965 444 353 or email: [email protected]

Fables, II, ii

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Assessment
Continuous Assessment o 1st Assignment: 25% o 2nd Assignment: 25% Final Examination: 50%

Prescribed Readings
Statute i. Constitution Act, Cap 1 of the Laws of Zambia. Text Books i. Munalula, M. M., Legal Process: Zambian Cases, Legislation and Commentaries (2004), UNZA Press, Lusaka. ii. Smith, A.T.H., Glanville Williams: Learning the Law (2006) 13th ed, Thomson Sweet & Maxwell, London

Recommended Readings
i. Curzon, L. B., Dictionary of Law (1997) Revised 4th ed, Pitman Publishers, London. ii. Rogowski, R., Civil Law (1996), New York Univ. Press, New York.

Module Outline
Part 1: The Legal System
Unit 1: Introduction to the Study of Law Topic 1.0: Introduction
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Topic 1.1: Concept of Law Topic 1.2: Purpose and Attributes of a Good Legal System Topic 1.3: Law and Society Topic 1.4: Adjudication and Alternative Dispute Resolution Unit 2: World Legal Systems/Jurisdictions Topic 2.0: Introduction Topic 2.1: English Common Law System Topic 2.2: Civil Law System Topic 2.3: American Common Law System Topic 2.4: Islamic Legal Order (Sharia Law) Topic 2.5: Canon Law Jurisdiction Topic 2.6: Roman Dutch Law Topic 2.7: Customary Law Unit 3: Historical Development of the English Legal System Topic 3.0: Introduction Topic 3.1: The Norman Conquest Topic 3.2: Reception of English Law Topic 3.3: Evolution of the Zambian Judiciary Topic 3.4: Zambian Courts and Stare Decisis Topic 3.5: Received Law vs. Indigenous Law

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Unit 4: Sources of Law Topic 4.0: Introduction Topic 4.1: The Constitution Topic 4.2: Acts of Parliament/Statutes Topic 4.3: Subsidiary Legislation- SIs; By Laws; Regulations; Standing Orders; and Circulars Topic 4.4: Judicial Decisions Topic 4.5: Common Law; Rules of Natural Justice; and Doctrines of Equity Topic 4.6: Customary Law Topic 4.7: International Law Topic 4.8: Legal Treatise Topic 4.9: Scholarly Works/Text Books Unit 5: Institutional Framework Topic 5.0: Introduction Topic 5.1: The Judiciary Topic 5.2: The Legal Profession Topic 5.3: Other Key Institutional Stakeholders

Part I1: The Legal Skills

Unit 6: Statutory Interpretation Topic 6.0: Introduction Topic 6.1: Legislation and Case Law Topic 6.2: Rules of Interpretation
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Topic 6.3: Law and Society Unit 7: Precedents: Doctrine and Technique Topic 7.0: Introduction Topic 7.1: Judicial Decisions Topic 7.2: Common Law and Zambia Topic 7.3: Preparing Case Summaries Unit 8: Lawyers and the Court Topic 8.0: Introduction Topic 8.1: Lawyers Dress Code Topic 8.2: Etiquette to the Bench Topic 8.3: Problem Solving Approaches- IRAC/CLEO and IMC Unit 9: Sample Examination Questions

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Unit 1: Introduction to the Study of Law

1.0 Unit Overview and Expected Outcomes
This Unit is a preliminary introduction to the study of law. It lays a foundation for you to understand the basics of law and the study of law. After studying this Unit you should be able to discuss the basic concepts of law including its evolution; terminologies; and impact on society, inter alia. You are, equally, expected to be able to identify and discuss the various legal technics that are available in resolving societal disputes after you have studied this Unit.

Topic 1.0: Introduction

The study of law involves one conducting research on pertinent topics of law in a bid to understand the legal principles that may be applied in resolving a dispute. Before one may conduct such research, they ought to clearly understand what law is and how it interacts with other instruments in society; such as religion, politics and customs, inter alia, in promoting social order. Below are some of the pertinent aspects necessary to prepare you in your new journey as a law student.

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Topic 1.1: Concept of Law

Law is a concept of regulating how persons in a particular society should behave. It involves the official rules made by governments. They keep peace and create order. When people break laws, their governments punish them.

Evolution of Law
Long ago, people lived only in small tribal groups. They lived together, followed the same traditions, and worshipped the same gods. There were no formal laws. Instead, people were guided by their customs, morals, and religion.

Over time, cities began to form. Laws became more formal and were written down in legal codes. In about 1750
BC,

the king of Babylon created one of the first legal codes,

the Code of Hammurabi. It listed certain crimes and told how they should be punished.

The Roman Contribution to the Development of Law

The ancient Romans helped shape our modern view of law. In the 600s
BC,

citizens of

Rome wrote down all of their basic laws on twelve bronze tablets. The Romans declared that no citizen, not even the ruler, was above the law. Modern law codes are rooted in the Roman system. Such law codes are statutory, meaning they are created and changed by legislatures, not by courts. They provide the main source of law in much of modern Europe, South America, and other places.
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1.1.3 Elementary Legal Terminology

Terminology and proper use of appropriate language is very critical to a lawyer. Whereas a farmer has ploughs, oxen, axes and hoes among other things for their instruments of trade, a lawyer has no instruments of trade but his tongue alone. As such, the astile skills of a successful lawyer must lie in their mastery of the art of proper use of language. One may win a bad case or lose a very good case dependant on, among other things, the inappropriate or appropriate use of language. Below is a sample of commonly abused terminologies both in civil and criminal matters.

Civil Terminology
In civil actions, the terminology is that a Plaintiff (the wronged person) sues (commences a claim against) a defendant. If the action is successful judgement is entered for the plaintiff resulting in the defendant being found liable. In such cases, the defendant may be ordered to pay damages (compensation/money) to the plaintiff for the

damage (injuries) caused.3

Smith, A.T.H., Glanville Williams: Learning the Law (2006) 13th ed, Thomson Sweet & Maxwell, London, pp 17- 18

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It is, therefore, a misnomer to say a prosecutor to institute civil proceedings against

accused person. It should be a plaintiff to commence a civil action against a defendant.

Criminal Terminology
With respect to criminal proceedings, the terminology is that a Prosecutor (a public officer usually a police officer acting on behalf of the State) prosecutes (institutes proceedings) an accused person. If the prosecution is successful, the judgement results in a conviction and the convicted person is found guilty. The punishment is a sentence in form of a fine or custodial sentencing, inter alia. It is, therefore, a misnomer to say

commence a criminal action. It should be to institute criminal proceedings.

Topic 1.2: Purpose and Attributes of a Good Legal System

The law is a body of rules that is designed to control the blameworthy conduct of individuals. And whilst a lot of people may not agree with the existence of the law it is still an important and irreplaceable aspect of any society. But to curb the improper

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application of the law it is important to set down a few things that are expected of a good legal system.4

There can never be a functional legal system if it is not transparent. When people turn to the courts they naturally expect the judges and prosecutors to act with ethics and honesty. But if the people responsible for applying the law are dishonest the very foundation on which justice rests will be shook to a standstill. The confidence which people will have in a transparent rule of law will somehow urge them to be law abiding and respectful of the law and its expectations.

Court cases are brought before the courts to be finalized and concluded. The remedies that the courts give are anticipated with much anxiety and nervousness so it is crucial that the law be applied with efficiency. The speedy conclusion of court cases means justice prevails instead of frustration and anxiety. Instead of postponing hearings over

Adriana, N., The Characteristics of a Good Legal System Retrieved 18 July 2013 from http://ezinearticles.com/?The-

Characteristics-of-a-Good-Legal-System&id=3393942

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and over again the courts must see to it that cases are brought to a close speedily whilst at the same time bringing about a fair and equitable conclusion to cases.

The law is useless if it is applied unjustly and unfairly. Justice is best served when the best possible outcome that pleases both parties is achieved. There are enough instances where money prevailed over justice and criminals went on to commit the same offences as the ones they were charged for in the very beginning. So for a legal system to be deemed good it must see to it that justice and fairness prevail over any other competing interests.

Corruption is when a benefit is given or accepted in exchange for a favour. Even though corruptibility is inescapable like oxygen it is best fought in the courts than anywhere else. The people entrusted with applying and enforcing the law must not accept bribes from the wealthy who wish to have the outcomes of cases sway in their direction. There is no real use in having the law if the people entrusted with the responsibility of protecting it are corrupt themselves; they must lead by example if they want others to respect the law.

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In any country there are lower courts and higher courts. Whenever a person is not satisfied by the decision in a lower court they have the right to appeal on the basis of the improper application of the law or procedures. This system of checks and balances is a healthy scenario to have and it actually rids the justice system of corruptibility and inefficiency.

For a justice system to run smoothly it must be free of government influence. There will always be situations where government officials get trapped in legal battles that threaten their political careers. As expected these officials do almost everything in their power to make sure that they remain free and out of prison. To avoid this, guardians of the law must be independent of government influence and separatist.

Lastly, before anything gains precedence over the law there must be accountability. If any judge; prosecutor or policeman does anything wrong he should come out in the open and confess. This accountability raises the people's confidence in the law.5

http://EzineArticles.com/3393942 Retrieved 18 July 2013

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Topic 1.3: Law and Society

As propounded by Thomas Hobbes, thus there is a symbiotic and reciprocal relationship between law and society. Indeed, there can be no law where there is no society just like there can be no society where there is no law because mankind is by nature a savage, monster and abyss capable of eliminating its own existence. This is evidenced in the classic Greco-Roman social maxim by Cicero: Ubi societas, ibi ius translating that where there is a society, there is law and vice-versa. This topic discusses the law and its impact in social change with emphasis on the complexity and interrelationship of legal, social, and ethical issues in the context of society. In short, there can be no society where there is no law just like there can be no law where there is no society. Law as a set of legal rules, regulations, norms and practices is a code aimed at regulating the interactions of persons in a particular society for the ultimate purpose of maintaining social order. As function of law in any given society is to regulates the interactions of the persons (whether people/humans or fictitious bodies). As for its purpose in any given society, the law is about maintaining social order. In simple terms, the law is relevant in society to advance the aspirations of the people in the particular society in which it operates by identifying the mischiefs therein and eliminating them

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(mischiefs) so that there is social order in that particular society. This is more so with respect to social change.

Correlation between Law and Social Change

The correlation between law and social change in any given society is in twofold and may be either direct or indirect. First, law plays an important indirect role in regard to social change by shaping have a direct impact on society. A good example hereon would be a law to introduce a compulsory educational system in a society where education had been optional. Second, law interacts in many cases indirectly with basic social institutions in a manner constituting a direct relationship between law and social change. For example, a law designed to prohibit polygamy in a society that is potentially polygamous. See the case of Chitambala v The Queen.6 Law also acts as an agent of modernization and social change. It is also an indicator of the nature of societal complexity and its attendant problems of integration. Further, the law reinforces of our beliefs and convictions as a people in a particular society by entrenching as sacrosanct those beliefs; and outlawing breach thereof.

[1961] R & N 166

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Lastly, law is an effective medium or agency, instrumental in bringing about social change in any given society as it legislates for the envisaged social change thus preparing the legal environment in which that particular change will be legally accepted. Therefore, we rejuvenate our belief that law has been pivotal in introducing changes in the societal structure and relationships and will continue to do so.7

Topic 1.4: Adjudication and Alternative Dispute Resolution

In any given society, disputes that arise from the interactions of persons in that particular society may be resolved through either a court-based litigation or ex-curia settlements through alternative dispute resolution techniques.

Activity 1.1
With reference to the Zambian society, critically discuss the meaning and efficacy of ubi jus, ibis societa.

Adjudication
Adjudication is the legal process of resolving a dispute by a court of law; and is synonymous to litigation. It involves the judicial procedure/ litigation of a matter by an Adjudicator hearing the arguments and submission from both parties to a dispute, calling witnesses to testify, adducing evidence and displaying of exhibits before studying the law governing the case; and finally settling of the dispute by formal giving or pronouncing of a Judgment or Ruling as the case maybe. In simple terms, adjudication
7

http://faizlawjournal.blogspot.com/2008/01/law-and-society.html Retrieved 14 July 2013

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refers to the final judgment or pronouncement by a court of law in a case that will determine the course of action taken in reference to the issue presented.8

Alternative Dispute Resolution

Otherwise popularly known as DRR, Alternative Dispute Resolution [techniques] are procedures for settling disputes by means other than litigation. Examples include Arbitration; Mediation; and Mini trials. The term alternative dispute resolution includes a wide range of processes, many with little in common except that each is an alternative to full-blown litigation. Litigants, lawyers, and judges are constantly adapting existing ADR processes or devising new ones to meet the unique needs of their legal disputes. As such, the definition of alternative dispute resolution is constantly expanding to include new techniques.9

Types of ADR Techniques

First is Mediation. Mediation, also known as conciliation, is the fastest growing ADR method. Unlike litigation, mediation provides a forum in which parties can resolve their own disputes, with the help of a neutral third party. Mediation depends upon the commitment of the disputants to solve their own problems. The mediator, also known

http://www.investopedia.com/terms/a/adjudication.asp Retrieved 16 July 2013 http://legal-dictionary.thefreedictionary.com/alternative+dispute+resolution Retrieved 16 July 2013

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as a facilitator, never imposes a decision upon the parties. Rather, the mediator's job is to keep the parties talking and to help move them through the more difficult points of contention. To do this, the mediator typically takes the parties through five stages. Second is Arbitration. Arbitration more closely resembles traditional litigation in that a neutral third party hears the disputants' arguments and imposes a final and binding decision that is enforceable by the courts. The difference is that in arbitration, the disputants generally agreed to the procedure before the dispute arose; the disputants mutually decide who will hear their case; and the proceedings are typically less formal than in a court of law. One extremely important difference is that, unlike court decisions, arbitration offers almost no effective appeal process. Thus, when an arbitration decision is issued, the case is ended. Final and binding arbitration has long been used in labour-management disputes. For decades, unions and employers have found it mutually advantageous to have a knowledgeable arbitrator, whom they have chosen, resolve their disputes in this cheaper and faster fashion. One primary advantage for both sides has been that taking disputes to arbitration has kept everyone working by providing an alternative to strikes and lockouts and has kept everyone out of the courts. Given this very successful track

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record, the commercial world has become enthusiastic about arbitration for other types of disputes as well. Nowadays a new form of arbitration, known as court-annexed arbitration has emerged.

Activity 1.2
Briefly explain what is legally meant by court-annexed arbitration?

Third is Minitrials. The minitrial, a development in ADR, is finding its greatest use in resolving large-scale disputes involving complex questions of mixed law and fact, such as Product Liability, massive construction, and antitrust cases. In a mini-trial, each party presents its case as in a regular trial, but with the notable difference that the case is tried by the parties themselves, and the presentations are dramatically abbreviated. In a minitrial, lawyers and experts present a condensed version of the case to top management of both parties. Often, a neutral adviser, sometimes an expert in the subject area, sits with management and conducts the hearing. After these presentations, top management representatives, by now more aware of the strengths and weaknesses of each side, try to negotiate a resolution of the problem. If they are unable to do so, they often ask for the neutral adviser's best guess as to the probable outcome of the casethereafter negotiations are resumed.

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The key to the success of this approach is the presence of both sides' top officials and the exchange of information that takes place during the minitrial. Too often, pre-litigation work has insulated top management from the true strengths and weaknesses of their cases. Mini-trial presentations allow them to see the dispute as it would appear to an outsider and set the stage for a cooperative settlement. Advantages of ADR Techniques The key advantages of such procedures are that they are usually less costly, user friendly, less complicated, less tedious and relatively expeditious compare to litigation.

Activity 1.3
Write a legal brief on the key difference(s) between a Court Ruling and a Court Judgement.

Well done, you have completed this unit but the scales of justice are yet to tilt in your favour. Attempt the Revision Questions below NOW!!!

Revision Questions
(1) (2) (3) (4) (5) Briefly explain the difference between adjudication and ex-curia settlements. List at least two essential characteristics of a good legal system. Discuss the concept of law. Trace the historical development of the law. Of what relevancy is the law if it does not advance the aspirations of the people in its society?

The Gavel is down; you are now cleared to proceed to the next unit. Congratulations!!!

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Unit 2: World Legal Systems/Jurisdictions

2.0 Unit Overview and Expected Outcomes
This unit attempts to familiarise you with the major legal systems of the world. It explores their history and espouses their respective characteristics and merits. At the end of this Unit, you should be able to identify the said legal systems and ascertain to which legal system Zambia subscribe.

Activity 2.1
What is a legal system and how does it differ from a jurisdiction.

Topic 2.0: Introduction

The Zambian legal system is based primarily on the English common law tradition. Zambia is overly reliant on the colonial legal system (many of the governments inefficiencies can be traced to its decision to adhere to a system that is ill-fitted for postcolonial rule). For instance, English law is used as a gap filler in all aspects of law from procedure, to contract, to legislative acts. Moreover, the system is structured in the same manner as it was during colonial rule and recognizes traditional customary law only if it is not repugnant to civilized ideas of justice. Further still, judges and lawyers continue to wear the antiquated dress of judges in the 19th century, especially complicated robes and white-haired wigs, while these customs have been phased out in

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most of the rest of the world, including England where they originated. Like the American and South African legal systems (which were heavily influenced by the British tradition), Zambia has a hybrid common law system with a legal authority hierarchy as follows: 1) constitutional law 2) statutory law 3) common law 4) customary law and 5) authoritative texts (which are merely persuasive and not binding).

The Zambian Constitution is the highest law of the land and provides for, essentially, the structure of government and the protection of the Zambian peoples rights. The Constitution is broken into parts and articles. Article five provides for citizenship, while articles 12 through 21 provide for the rights to life, personal liberty, a fair hearing, freedom of conscience and religion, expression, assembly, and protections from slavery, inhuman treatment, deprivation of property and freedom against arbitrary search; respectively.

Parliament is the legislative body. It is responsible for promulgating acts that become the law of Zambia upon printing in the law in the Zambian Gazette (See Branches section). The government of Zambia publishes the Zambian Gazette, which contains all relevant announcements and enactment or amendments of laws and regulations.

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Zambia also has a law report series known as the Zambia Law Reports (ZLR). These Law reports organize common law by subject and are obtainable at the High Court. The statutes of Zambia are available online and are listed by name. Supreme Court, High Court, Industrial Relations Court, Land Tribunal, and Revenue Tribunal rulings are also found online. The Zambian Law Journal, which is Zambias scholarly law journal, is found at the school of Law in the University of Zambia. Below, is an exploration of the most established world legal systems that have bearing on the aforesaid Zambian legal system.

Topic 2.1: English Common Law System

Another system of law took shape later in England. Before the 12th century
AD,

each

part of England had its own rules and customs. From the 12th century onward, England became a single nation. The courts of the land made sure people followed a common set of customs, today known as the English common law.10

Unlike the Roman system of law, the common law was never written down in one place. Instead, the courts made decisions about the law based on earlier court decisions. Those decisions are called precedents. Each case must be decided in the same way as

10

Microsoft Encarta (2006)

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earlier cases. But if a case has some new aspects, the decision made will set a new precedent. That way, courts gradually change the law as society changes.

Topic 2.2: Civil Law System Definition

Civil Law is [A] body of rules that delineate private rights and remedies, and govern

disputes between individuals in such areas as contracts, property, and Family Law; distinct from criminal or public law. Civil law systems, which trace their roots to ancient Rome, are governed by doctrines developed and compiled by legal scholars. Legislators and administrators in civil law countries use these doctrines to fashion a code by which all legal controversies are decided.11

Meaning of Civil Law System

Broadly, the term civil law has two meanings. One meaning of civil law refers to a legal system prevalent in Europe that is based on written codes. Civil law in this sense is contrasted with the common-law system used in England and most of the United States, which relies on prior case law to resolve disputes rather than written codes. The second meaning of civil law refers to the body of laws governing disputes between individuals,

11

http://legal-dictionary.thefreedictionary.com/civil+law Retrieved 7 July 2013

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as opposed to those governing offenses that are public and relate to the governmentthat is, civil law as opposed to Criminal Law.

Historical Background
The civil law system is derived from the Roman Corpus Juris Civilus of Emperor Justinian I. In modernity, it is largely attributable to the actions of Napolon as entrenched in the new French jurisdiction. Indeed, in France, the civil law is set forth in the comprehensive French Civil Code of 1804, also known as the Code Napolon.

France exported this legal system to the New World when it settled Louisiana in 1712. When the French ceded Louisiana to Spain in 1762, the new Spanish governor replaced French civil law with Spanish civil law. France regained control of the territory in 1803 and the United States purchased it a mere 20 days later. During that brief period of French rule, the French prefect abolished all Spanish courts but did not reintroduce French law. Hence, the new U.S. governor of Louisiana, William Claiborne, took control of a territory that lacked a legal system.

Distinction from Common Law System

A civil law system differs from a common-law system, which relies on prior decisions to determine the outcome of a lawsuit. Most European and South American countries have

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a civil law system. England and most of the countries it dominated or colonized, including Canada and the United States, have a common-law system. However, within these countries, Louisiana, Quebec, and Puerto Rico exhibit the influence of French and Spanish settlers in their use of civil law systems.

Under Civil Law system, judges, unlike their common-law counterparts, are not bound by judicial precedent. Common-law judges adhere to the doctrine of Stare Decisis, which mandates that the outcome of a lawsuit be governed by previous decisions in similar cases. However, under the civil law doctrine of jurisprudence constante, or settled Jurisprudence, judges are expected to follow a series of decisions that agree on the interpretation of a code provision.12

Civil law systems differ from common-law systems in another important way: in a common-law jurisdiction, appellate courts, in most instances, may review only findings of law. However, civil law appellate courts may review findings of fact as well as

12

Ibid

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findings of law.13 This allows an appellate court to declare a lower courts decision erroneous, impose its own findings of fact.14

Topic 2.3: American Legal System

The system of law in the United States is a mixture of the statutory and common law systems. The U.S. Congress and state legislatures pass many statutory laws. But the common law remains important, too. American courts continue to make many legal decisions by precedent.15

Topic 2.4: Islamic Legal Order (Sharia Law) Definition and Meaning
Shariah is the moral code and religious law of Islam.16 It deals with many topics
addressed by secular law, including crime, politics and economics, as well as personal matters such as sexual intercourse, hygiene, diet, prayer, and fasting. Though interpretations of Shariah vary between cultures, in its strictest definition it is considered the infallible law of God- as opposed to the human interpretation of the laws.
13

Rogowski, R., Civil Law (1996), New York Univ. Press, New York, p 6

14

Ibid
Microsoft, op cit http://en.wikipedia.org/wiki/Sharia Retrieved 5 July 2013

15

16

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Sources of Shariah Law

There are two primary sources of sharia law: the precepts set forth in the Quran, and the example set by the Islamic prophet Muhammad in the Sunnah. Where it has official status, sharia is interpreted by Islamic judges (qadis) with varying responsibilities for the religious leaders (imams). For questions not directly addressed in the primary sources, the application of sharia is extended through consensus of the religious scholars (ulama) thought to embody the consensus of the Muslim Community (ijma).

Islamic jurisprudence sometimes also incorporates analogies from the Quran and Sunnah through qiyas, though Shia jurists prefer reasoning (aql) to analogy. The introduction of sharia is a longstanding goal for Islamist movements globally, including in Western countries, but attempts to impose sharia have been accompanied by controversy, violence, and even warfare such as the Second Sudanese Civil War. Some in Israel and other countries in Asia have maintained institutional recognition of sharia, and use it to adjudicate their personal and community affairs. In Britain, the Muslim Arbitration Tribunal makes use of sharia family law to settle disputes.

The concept of justice embodied in sharia is different from that of secular law. In Islam, the laws that govern human affairs are just one facet of a universal set of laws governing

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nature itself. Violations of Islamic law are offenses against God and nature, including one's own human nature. Whatever crime is committed, whatever punishment is prescribed for that crime in this world, one must ultimately answer to God on the Day of Judgement.17

In secular jurisprudence, sharia is classified as religious law, which is one of the three major categories that individual legal systems generally fall under, alongside civil law and common law.

History of Shariah Law

The origin of sharia is the Qur'an, believed by Muslims to be the word of God, and traditions gathered from the life of the Islamic Prophet Muhammad (born ca. 570 CE in Mecca). Sharia underwent fundamental development, beginning with the reigns of caliphs Abu Bakr (63234) and Umar (63444), during which time many questions were brought to the attention of Muhammad's closest comrades for consultation. During the reign of Muawiya b. Abu Sufyan ibn Harb, ca. 662 CE, Islam undertook an urban transformation, raising questions not originally covered by Islamic law. Since then,

17

http://en.wikipedia.org/wiki/Sharia#cite_note-23 Retrieved 13 July 2013

31] L100 Legal Process: Learners Module

changes in Islamic society have played an on-going role in developing sharia, which branches out into fiqh and Qanun respectively.18

The formative period of fiqh stretches back to the time of the early Muslim communities. In this period, jurists were more concerned with pragmatic issues of authority and teaching than with theory. Progress in theory happened with the coming of the early Muslim jurist Muhammad ibn Idris ash-Shafi'i (767820), who laid down the basic principles of Islamic jurisprudence in his book Al-Risala. The book details the four roots of law (Quran, Sunnah, ijma, and qiyas) while specifying that the primary Islamic texts (the Quran and the hadith) be understood according to objective rules of interpretation derived from careful study of the Arabic language.

A number of important legal concepts and institutions were developed by Islamic jurists during the classical period of Islam, known as the Islamic Golden Age, dated from the 7th to 13th centuries.19 Among some Muslims, tribal laws were adapted to conform to sharia for they could not form part of the tribal law unless and until they were generally accepted as such. Additionally, Noel James Coulson, Lecturer in Islamic law
18

Ibid
http://en.wikipedia.org/wiki/Sharia Retrieved 8 July 2013

19

32] L100 Legal Process: Learners Module

of the University of London, states that to the tribe as a whole belonged the power to determine the standards by which its members should live. But here the tribe is conceived not merely as the group of its present representatives but as a historical entity embracing past, present, and future generations.20 So, while each and every law must be rooted in either the Qur'an or the Sunnah,21 without contradiction, tribal life brought about a sense of participation. Such participation was further reinforced by Muhammad who stated, My community will never agree in error.22

The Umayyads initiated the office of appointing qadis, or Islamic judges. The jurisdiction of the qadi extended only to Muslims, while non-Muslim populations retained their own legal institutions. The qadis were usually pious specialists in Islam. As these grew in number, they began to theorize and systemize Islamic jurisprudence. The Abbasid made the institution of qadi independent from the government, but this separation wasn't always respected. Both the Umayyad caliph Umar II and the Abbasids had agreed that the caliph could not legislate contrary to the Qur'an or the Sunnah. Imam Shafi'i declared: a tradition from
20

Coulson, N. J., A History of Islamic law (Islamic surveys) (1964), University Press, Oxford, p 1 http://en.wikipedia.org/wiki/Sharia#cite_note-Berg.2C_Herbert_2005-32 Retrieved 14 July 2013 Berg, H., Islamic Law in Berkshire Encyclopedia of World History 3 (2005): 1030.

21

22

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the Prophet must be accepted as soon as it becomes known.If there has been an action on the part of a caliph, and a tradition from the Prophet to the contrary becomes known later, that action must be discarded in favour of the tradition from the Prophet.23 Thus, under the Abbasids the main features of sharia were definitively established and sharia was recognized as the law of behaviour for Muslims.

During the 19th century, the history of Islamic law took a sharp turn due to new challenges the Muslim world faced: the West had risen to a global power and colonized a large part of the world, including Muslim territories. In the Western world, societies changed from the agricultural to the industrial stage, new social and political ideas emerged, and social models slowly shifted from hierarchical towards egalitarian. The Ottoman Empire and the rest of the Muslim world were in decline, and calls for reform became louder. In Muslim countries, codified state law started replacing the role of scholarly legal opinion. Western countries sometimes inspired, sometimes pressured, and sometimes forced Muslim states to change their laws. Secularist movements pushed for laws deviating from the opinions of the Islamic legal scholars. Islamic legal scholarship
23

http://en.wikipedia.org/wiki/Sharia#cite_note-Khadduri60-36 Retrieved 9 July 2013

34] L100 Legal Process: Learners Module

remained the sole authority for guidance in matters of rituals, worship, and spirituality, while they lost authority to the state in other areas.

The Muslim community became divided into groups reacting differently to the change: secularists believe that the law of the state should be based on secular principles, not on Islamic legal doctrines; traditionalists believe that the law of the state should be based on the traditional legal schools;24 reformers believe that new Islamic legal theories can produce modernized Islamic law and lead to acceptable opinions in areas such as womens rights. This division persists until the present day.25 There has been a growing religious revival in Islam, beginning in the eighteenth century and continuing today. This movement has expressed itself in various forms ranging from wars to efforts towards improving education.26

Sources of Sharia Law

There are two sources of Sharia (understood as the divine law): the Quran and Sunnah. The Quran is viewed as the unalterable word of God. Much of the Qur'an exhorts

24

http://en.wikipedia.org/wiki/Sharia#cite_note-Khadduri60-36 Retrieved 8 July 2013

25

Ibid
Lapidus, I., The Cambridge Illustrated History of the Islamic World (1996) Cambridge University Press, Cambridge, p.

26

292

35] L100 Legal Process: Learners Module

Muslims to general moral values; only 80 verses of the Quran contain legal prescriptions. The Sunnah is the life and example of the Islamic prophet Muhammad. The Sunnah's importance as a source of Shariah is confirmed by several verses of the Quran. The Sunnah is primarily contained in the hadith or reports of Muhammad's sayings, his actions, his tacit approval of actions and his demeanour. While there is only one Quran, there are many compilations of hadith, with the most authentic ones forming during the sahih period (850 to 915 CE). The six acclaimed Sunni collections were compiled by (in order of decreasing importance) Muhammad al-Bukhari, Muslim ibn al-Hajjaj, Abu Dawood, Tirmidhi, Al-Nasai, Ibn Majah. The collections by alBukhari and Muslim, regarded the most authentic, contain about 7,000 and 12,000 hadiths respectively (although the majority of entries are repetitions). The hadiths have been evaluated on authenticity, usually by determining the reliability of the narrators that transmitted them.

The process of interpreting the two primary sources of Islamic law is called fiqh (literally meaning intelligence) or Islamic jurisprudence. While the above two sources are regarded as infallible, the fiqh standards may change in different contexts. Fiqh

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covers all aspects of law, including religious, civil, political, constitutional and procedural law. Fiqh depends on 4 sources:27

1. Interpretations of the Qur'an 2. Interpretations of the Sunnah 3. Ijma, consensus amongst scholars (collective reasoning) 4. Qiyas/Ijtihad analogical deduction (individual reasoning)

Although there are many different interpretations of Sharia, and differing perspectives on each interpretation, there is consensus among Muslims that sharia is a reflection of Gods will for humankind. Sharia must therefore be, in its purest sense, perfect and unchanging. The evolution or refinement of sharia is an effort to reflect God's will more perfectly.

Parallels with Western Legal Systems

Similarities and influences on English legal institutions have led some scholars to suggest that Islamic law may have laid the foundations for the common law as an integrated whole.28

27

http://en.wikipedia.org/wiki/Sharia#cite_note-R57-58 Retrieved 18 July 2013

28

Ibid

37] L100 Legal Process: Learners Module

Hawala, an early informal value transfer system, later influenced the development of the Aval in French civil law and the Avallo in Italian law. The European commenda limited partnerships (Islamic Qirad) used in civil law as well as the civil law conception of res judicata may also have origins in Islamic law.

Islamic law also made major contributions to international admiralty law, departing from the previous Roman and Byzantine maritime laws in several ways. The Islamic influence on the development of an international law of the sea can thus be discerned alongside that of the Roman influence.

After students completed their post-graduate education, they were awarded doctorates giving them the status of faqih (meaning master of law), mufti (meaning professor of legal opinions) and mudarris (meaning teacher), which were later translated into Latin as magister, professor and doctor respectively. Shariah classically recognizes only natural persons, and never developed the concept of a legal person, or corporation, i.e., a legal entity that limits the liabilities of its managers, shareholders, and employees; exists beyond the lifetimes of its founders; and that can own assets, sign contracts, and appear in court through representatives. Interest prohibitions, also imposed secondary costs by discouraging record keeping, and delaying the introduction of modern accounting.

38] L100 Legal Process: Learners Module

Topic 2.5: Canon Law Jurisdiction Definition

Canon law jurisdiction is a Roman ecclesiastical law system29 consisting of canon law rules. It also refers to the law of the Church of England.30

Historical Development
The Canon law system was first codified in 1139 as body of writings to govern the ecclesiastical scholars. As such, in the 1736 case of Middleton v Croft,31 the court held that canon law does not bind the laity.32 In the olden days, Canon law outlawed the questioning of religious precepts and beliefs. For instance, until 1677 heresy was a capital offence of deliberate and overt denial of some accepted dogma of the church as espoused in Nobel v Voysey33 as well as the Ecclesiastical Jurisdiction Measure.34

29

Curzon, L.B., Dictionary of Law (1997), Revised 4th ed, Pitman Publishing, London, at 51

30

Ibid
(1736) 2 Atk 690 The ordinary congregation or layperson followers (1871) LR 3 PC 357 1963

31

32

33

34

39] L100 Legal Process: Learners Module

Topic 2.6: Roman Dutch Law

Roman-Dutch law is a legal system based on Roman law as applied in the Netherlands in the 17th and 18th centuries. As such, it is a variety of the European continental civil law or ius commune. While Roman-Dutch law ceased to be applied in the Netherlands proper as early as the beginning of the 19th century, Roman-Dutch law is still applied by the courts of South Africa and its neighbours Lesotho; Swaziland; Namibia; Botswana; and Zimbabwe. It also had an impact on New York State.35

History of Roman Dutch Law

Roman law was not abandoned during the early middle Ages. Codified versions of Roman law such as the Theodosian Code and excerpts of latter-day imperial enactments

Constitutiones were well known in the successor Germanic kingdoms and vital to
maintaining the commonplace principle of folk-right which applied pre-existing Roman law to Romans and Germanic law to Germans. The Breviary of Alaric and the Lex

Gundobada Romana are two of the several mixed Roman-Germanic law codes that
incorporated much Roman legal material. However, because the fall of Rome preceded

35

Bielinski, S., The Schout in Rensselaerswijck: Conflict of Interests (1979) Colonial Albany Social History Project.

Retrieved 13 July 2013

40] L100 Legal Process: Learners Module

the drafting of Justinians Code, early Byzantine law was never influential in Western Europe.

Interest in the doctrines of Byzantine lawyers came when, around the year 1070

AD,

copy of the Digest of Emperor Justinian I found its way into northern Italy. Scholars in the emerging University of Bologna, who previously had access to only a limited portion of Justinian's code, began a revival of interest in Roman law and began to teach law based on these texts. Courts gradually started to apply Roman law, as taught in Bologna and soon elsewhere, because the judges felt that the refined legal concepts of Roman law were more apt to solve complex cases than customary law which had been in use since the fall of the Western Roman Empire throughout western and central Europe. This process, referred to as the reception of Roman law, took place in the Holy Roman Empire and the Mediterranean, but was much slower to come to northern Europe. Examples include Saxony, Northern France, the Low Countries and Scandinavia.

In the 15th century, the process reached the Netherlands. While Italian lawyers were the first to contribute to the new jurisprudence based on the Roman texts, in the 16th century, French doctrinal scholars were most influential. In the 17th and 18th century, it

41] L100 Legal Process: Learners Module

was the Dutch who were the most influential. Members of the school of elegant jurisprudence included Hugo Grotius, Johannes Voet, Ulrich Huber and many others. These scholars managed to merge Roman law with legal concepts taken from the traditional Dutch customary law, especially of the province of Holland. The resulting mixture was predominantly Roman, but it contained some features which were characteristically Dutch.

The said mixture is known as Roman-Dutch law. The Dutch applied their legal system in their colonies. In this way, the Dutch variety of the European civil law (or ius

commune) came to be applied in South Africa and Sri Lanka. In the Netherlands, the
history of Roman-Dutch law ended when, in 1809, the puppet state Kingdom of Holland adopted the French Code civil, a different system but also ultimately based on Roman law. However in the then Dutch colonies, French law was never introduced during or after the Napoleonic era. As a result, the Roman-Dutch law managed to survive to this day.

Topic 2.7: Customary Law

Zambia has a dual legal system propagated by statutory and customary law although statutory law takes precedence over customary law the reality is that many people live

42] L100 Legal Process: Learners Module

in rural. As espoused in Chibwe v Chibwe,36 customary law in Zambia is recognized by the Constitution provided its application is not repugnant to any written law. Customary law is administered by the Local Courts though the High Court may seize jurisdiction thereon. In the case of Nkhoma v Nkhoma37 it was held that a Local Court shall administer African customary law.

Well done, you have completed this unit but the scales of justice are yet to tilt in your favour. Attempt the Revision Questions below NOW!!!

Revision Questions
(1) (2) (3) (4) (5) Critically explain the major legal systems of the world. In an event that there was conflict between statutory and conflict customary law, which one should prevail. What are the major characteristics of canon law? What is the philosophy underlying Shariah law as a legal order? Discuss the fundamental differences between common and civil.

The gavel is down; you are now cleared to proceed to the next unit. Congratulations!!!

36

SCZ Judgment No. 38 of 2000 (HC) [2004] ZMHC 1 (7 March 2004)

37

43] L100 Legal Process: Learners Module

Unit 3: Historical Development of the English Legal System

3.0 Unit Overview and Expected Outcome
The main objective of this Unit is to introduce you to the historical development of the English legal system and the legal profession. After studying this Unit, you should be able to explain the various stages that the English legal system has gone through and how the legal profession has evolved over the years. You should also be able to demonstrate understanding of how the English legal system has influenced the Zambian legal system.

Introduction
Zambia is a former colony of Britain; by virtue of which the English legal system has overwhelming influence on the Zambian legal system. As a result, the precepts and tenets of the English legal system have been imported into the Zambian jurisdiction.

Topic 3.1: The Norman Conquest

The Norman conquest of England was the 11th century invasion and occupation of England by an army of Norman, Breton and French soldiers led by Duke William II of Normandy, later William the Conqueror. William, who defeated the Anglo-Saxon King Harold II of England at the Battle of Hastings on 14 October 1066, was crowned king in
44] L100 Legal Process: Learners Module

London on Christmas Day 1066. He then consolidated his control and settled many of his followers in England, introducing many governmental and societal changes.

Williams claim to the English throne derived from his familial relationship with the childless King Edward the Confessor, who may have encouraged William's hopes for the throne. When Edward died in January 1066, he was succeeded by his brother-in-law Harold, who faced challenges from William and another claim by the Norwegian king, Harold Hardrada.

Hardrada invaded northern England in September 1066 and was victorious at the Battle of Fulford before being defeated and killed by King Harold at the Battle of Stamford Bridge on 25 September 1066. Within days of that battle William landed in southern England and Harold quickly marched south to confront him, leaving many of his forces behind in the north. On 14 October Harold's army confronted William's invaders near Hastings. After an all-day battle, Harold's army was defeated and he was killed.

Although Williams main rivals were gone, he still faced rebellions over the following years, and he was not secure on his throne until after 1072. The English elite who resisted had their lands confiscated and some fled into exile. To control his new

45] L100 Legal Process: Learners Module

kingdom, William gave lands to his followers and built castles throughout the land to command military strongpoints.

Other effects of the conquest included the introduction of Norman French as the language of the noble elite, the court and government, and changes in the composition of the upper classes, as William enforced lands to be held directly from the king.38 More gradual changes affected the agricultural classes and village life: the main immediate change appears to have been the formal elimination of slavery, which may or may not have been linked to the invasion. There was little alteration in the structure of government, as the new Norman administrators took over many of the forms of AngloSaxon government.39

Topic 3.2: Reception of English Law

English Law is applicable to Zambia by virtue of the English Law (Extent of

Application) Act.40 Section 2 thereof provides that common law, doctrines of equity and
statutes that were in force in England on 17 August 1911 are applicable to Zambia. This reception provision entails that all laws that were in force in England as at 17 August

38

https://en.wikipedia.org/wiki/Norman_conquest_of_England Retrieved 13 July 2013

39

Ibid
Cap 11 of the Laws of Zambia

40

46] L100 Legal Process: Learners Module

1911 were imported into our jurisdiction. 17 August 1911 is the cut-off date when the laws in England seized to be applicable here because the Northern Rhodesia Order in Council commenced. The Northern Rhodesia Order in Council became the new legal regime replacing the further importation of laws enacted after the cut-off date. This does not, however, mean that all laws in England before the cut-off date were imported into our jurisdiction. It is only those laws that were actually valid and in force as at the cut-off date. Those laws that had ceased to have force in the UK as at the cut-off date were not part of the imports.

Topic 3.3: Evolution of the Zambian Judiciary

The judicial system is based on English common law and customary law. Common law is administered by several High Courts, which have authority to hear criminal and civil cases and appeals from lower courts. Resident magistrate's courts are also established at various centres. Local courts mainly administer customary law, especially cases relating to marriage, property, and inheritance.

Under the Constitution of 1996, the Supreme Court is the highest court in Zambia and serves as the final court of appeal. The chief justice and other eight judges are appointed by the President. In consultation with the prime minister, the president also appoints

47] L100 Legal Process: Learners Module

the director of public prosecution and the attorney general, the latter being the principal legal adviser to the government.

Activity 3.1
Trace the historical development of the Zambian judiciary.

Topic 3.4: Zambian Courts and English Stare Decisis

One of the major features of the Common Law is that the court is required to follow precedence. Very simply speaking, past court decisions can be binding law. Each time a current dispute or charge reaches the court and there is a judgment, the judgment is required to be based on past court decisions/opinions (as long as the old and new cases have facts that are similar enough). By contrast, in Civil Law systems the courts do not have to follow prior decisions.

Since a major feature of the Common Law system is to follow prior court decisions, legal systems of countries that gained independence from the British Empire, Zambia inclusive, still occasionally cite and follow British court decisions as persuasive law. In Zambia, today, courts still cite and rely on British reasoning in certain decision. The following or emulation of the reasoning in a past decision is referred to as Stare decisis.41

41

http://www.nationsencyclopedia.com/Africa/Zambia-JUDICIAL-SYSTEM.html#ixzz2ZNixbyo4 Retrieved 17 July 2013

48] L100 Legal Process: Learners Module

Topic 3.6: Received Law vs. Indigenous Law

Zambia is a former British colony, and as with many countries that are former British colonies, its legal system is an inheritance and continuation of the English common law (one of the two legal systems that trace back to ancient western civilization; the other being Civil Law). All Common Law countries share a fundamentally similar legal system.

These countries include the United States, Hong Kong, Bangladesh, Australia, Pakistan, Canada (except for one province), and others. One common thread in all these countries is that there is need to balance the relationship between the received foreign law and the indigenous law. In Zambia, both municipal statutory law and domestic Case law take precedence over English law unless there is a lacuna (gap) in the law.

Activity 3.2
Read the case of Lewanika & Others v. Chiluba (1998) ZR 89 and write a one-page brief on the impact of Zambias legal history on citizenship.

Well done, you have completed this unit but the scales of justice are yet to tilt in your favour. Attempt the Revision Questions below NOW!!!

49] L100 Legal Process: Learners Module

Revision Questions
(1) (2) (3) (4) (5) Do you subscribe to the view that Zambian statute and case laws are proper indigenous laws? Briefly discuss the pertinent differences between received laws and indigenous law in terms of application. With hypothetical examples, write a legal brief on stare decisis. Trace the history the Zambia legislature and its impact on the Judiciary. Why is the English legal system important in the administration of justice in Zambia?

Gavel is down; you are now cleared to proceed to the next unit. Congratulations!!!

50] L100 Legal Process: Learners Module

Unit 4: Sources of Law

4.0 Unit Overview and Expected Outcomes
This unit deals with the various sources of law applicable to Zambia. At the end of the Unit you are expected to demonstrate understanding of the various sources and their respective nature; whether binding or persuasive sources; primary or secondary sources.

Topic 4.0: Introduction

Sources of law are the springs or fountains from which we may draw legal authority in dealing with legal disputes. Sources may be classified into two broad categories by virtue of effect. That is to say, first, some sources are binding sources thus mandatory to consult them when dealing with a legal issue. Second, some sources are merely persuasive thus it is optional to consult them when dealing with a legal dispute.

The other approach categorisation is whether the source of law is a primary source or secondary source. Primary sources have a binding effect thus mandatory whereas secondary sources are merely persuasive thus optional to consult.

Topic 4.1: The Constitution

The Constitution is the supreme law of the land and the highest source of law. It is a Like most other branches of law in Zambia, the Constitution Act42 is the major source of

42

Cap 1 of the Laws of Zambia

51] L100 Legal Process: Learners Module

legal process law. It is the primary instrument of law by which all other laws must be tested for legal validity and legitimacy. Article 1(3) of the Constitution Act43 states that the Constitution is the supreme law of the land and any other law; whether written or unwritten law must be consistent with the Constitution. Otherwise, such a law shall be null and void to the extent of its inconsistency.

Activity 4.1
Collect the above mentioned statutes including the Constitution. Get your markers or highlighters ready. Peruse through the said statutes and highlight or mark at least 3 pertinent provisions in each one of them covering the topic of sources of law. Note that these provisions could be explicit or implied.

Topic 4.2: Acts of Parliament/Statutes

After the Constitution, Acts of Parliament or Statutes are the major sources of law in Zambia. They have a binding effect on all subjects of the jurisdiction by virtue of being municipal or domestic law. The making (enactment) of these laws is a preserve of Parliament; which is the National Assembly (the Speaker of the National Assembly and Members of Parliament) acting together with the Republican President.

43

Ibid

52] L100 Legal Process: Learners Module

Activity 4.2
Differentiate Municipal Law from International Law with respect to their binding and/or persuasive effect in the Zambian jurisdiction.

Topic 4.3: Subsidiary Legislation Subsidiary legislation is delegated legislation that Parliament or a specific provision of a particular Statute delegates to a different body, institution, or experts to legislate on. It is normally an addition or supplement to an already enacted substantive statute. Examples of subsidiary legislation include, inter alia, Statutory Instruments (SIs); By Laws; Rules and Regulations; Standing Orders; and Government Circulars. Statutory Instruments Statutory instruments are laws made, usually, by a Minister in charge of a particular Government Ministry or Department. It is normally restricted to specific issues or matters pertaining to that respective Ministry. For example, the Minister in charge of industrial and labour relations has time and again issued SIs to revise the minimum wages and conditions of service for employees. The advantages of this type of legislation are that the process of issuance by one Minister is faster than the process of enactment by all Members of
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Parliament. Second, there is a special touch of expertise as the Minister is more conversant with the issue at hand and is likely to work with technocrats in issuing the SI. By Laws
By Laws are laws made by local authorities (councils) to regulate affairs in their specific localities. As provided for under the Local Government Act,44 one of the fundament functions of local authorities is to pass laws for maintenance of social order in their respective domains of jurisdictions. Local authorities are under obligation to ensure that they pass By Laws that are reasonable and in conformity with other existing written laws as was espoused in William Kasonso v Ndola City Council.45

Rules and Regulations

Rules and Regulations are delegated laws made by specialised organs of the Governemnet as per Parliamentary delegation. They normally deal with procedural matters of how to enforce the substantive provisions of an Act after enactment by Parliament. For example, Section 41 of the Anti- Gender Based Violence Act46 vests

44

Cap 281 of the Laws of Zambia SCZ Judgment No. 13 of 1997 No. 1 of 2011

45

46

54] L100 Legal Process: Learners Module

powers in the Chief Justice to formulate Rules and Regulations on how to enforce the said Act with respect to litigation thereon.

Standing Orders Standing Orders are rules of engagement formulated by a group of persons to govern their internal interactions as they conduct business to the exclusion of others. In the case of Chikuta v Chipata Rural Council47 it was elucidated that Standing Orders of a particular local authority govern only the relationship among councillors of that particular local authority and not outsiders; with the Minister in charge of Local Government held to be amenable thereto as he is not an outsider. The case of Fred Mmembe and Another v The People48 is also instructive hereon by implication and analogy. Circulars
With regards to Circulars, where there is no any other written law, Government policy pronouncements and guidelines in form of circulars may resume the force of law and be enforced as such. In such situations they may serve as a valid source of law. For

47

(1974) ZR 241 1996

48

55] L100 Legal Process: Learners Module

example, in the case of Wynter M. Kabimba v Lusaka City Council49 Government

Circular No. 2 of 1996 was given the equivalence of law in laying terms and conditions
for the sale of Government houses.

Topic 4.4: Judicial Decisions/Common Law

Judicial decisions are judgements handed down by the courts of law. Under the doctrine of precedents, judicial decisions form part of plethora of sources of law in Zambia. Domestic judicial decisions form part of the Zambian primary sources of law together with the Constitution, statutes and regulations as held in Kasote v The People.50

Generally, trial courts determine the relevant facts of a dispute and apply law to these facts, while appellate courts review trial court decisions to ensure the law was applied correctly. As such, court opinions create legal precedents that guide judges in deciding similar future cases. In this regard, judicial decisions of the highest court in a court system (the Supreme Court) create mandatory and binding precedent that must be followed by lower courts. Similarly, the High Court creates binding precedents for the courts below it. In the same manner, the Subordinate Courts judicial decisions become binding sources of law on the Local Courts.
49

(1998) ZR 49 (1977) ZR 75

50

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Topic 4.5: Rules of Natural Justice; and Doctrines of Equity

Rules of natural justice and doctrines of equity are also a primary source of law in Zambia.

Activity 4.1
Discuss the meaning and nature of both the rules of natural justice and doctrine of equity.

Topic 4.6: Customary Law

Customary law is applicable in Zambia as a source of law provided that customary law is not contrary to any written law and is not repugnant to rules of natural justice, good conscience and morals. In the case of Kaniki Buleti v Lot Jairus 51 it was enunciated that the imposition of the rite of purification upon individuals against their volition was a customary practice contrary to good conscience.

Topic 4.7: International Law

Zambia is signatory to many international instruments. Although the country is quick to ratify, implementation is often slow or never materialises. Zambia belongs to the dualist tradition, thus views international law and domestic law as two separate legal systems. Hence domestication of international law by an Act of Parliament is necessary before international law can be applied. This of course excludes customary international

51

(1967) ZR 71

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law which is binding on all states. The Attorney General is mandated by article 54(2) (b) of the Constitution to draft and peruse treaties and agreements the government of Zambia is party to.52

Topic 4.8: Legal Treatise

A legal treatise is a scholarly legal publication containing all the law relating to a particular area, such as criminal law or trusts and estates. There is no fixed usage on what books qualify as a legal treatise with the term being used broadly to define books written for practicing attorneys and judges, textbooks for law students, and explanatory texts for laypersons. The treatise may generally be loose leaf bound with rings or posts so that updates to laws covered by the treatise and annotated by the editor may be added by the subscriber to the legal treatise.

Legal treatises are secondary authority, and can serve as a useful starting point for legal research, particularly when the researcher lacks familiarity with a particular area of law. Lawyers commonly use legal treatises in order to review the law and update their knowledge of pertinent primary authority namely, case law, statutes, and administrative regulations.
52

Magagula,

S.A.,

The

Law

and

Legal

Research

in

Zambia

Retrieved

on

16

July

2013

from

http://www.nyulawglobal.org/globalex/zambia.htm#Sourcesoflaw

58] L100 Legal Process: Learners Module

In law schools, treatises are sometimes used as additional study materials, as treatises often cover legal subjects at a higher level of detail than most casebooks do. Certain treatises, called hornbooks, are used by American law students as supplements to casebooks. Hornbooks are usually one volume- sometimes a briefer version of a longer, multi-volume treatise written by a recognized legal scholar.53

Topic 4.9: Scholarly Works/Text Books

Authoritative texts will include any restatements of the law that may be found in treatises or official restatements. Also included will be scholarly journals found in Zambia and elsewhere. Zambia has a tradition of looking to more mature legal systems for guidance on how to handle issues that come before the court for the first time. All of these items are used when the other sources of law have proved unhelpful or nonexistent. They hold little weight against common law, and especially against statutes or the Constitution.54

53

http://en.wikipedia.org/wiki/Legal_treatise Retrieved 13 July 2013 http://www.neweconomia.com/zambia/zambiagovlegalsystem.html Retrieved on 16 July 2013

54

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Well done, you have completed this unit but the scales of justice are yet to tilt in your favour. Attempt the Revision Questions below NOW!!!

4.5 Revision Questions

(1) (2) (3) (4) (5) Discuss at least five demerits of SI in comparisons with Acts. Compare and contrast legal treatise from scholarly writings as sources of law. What is the key difference between laws and sources of law? Can a written lecture module qualify as a source of law? With the aid of at least two decided Zambian cases, write a legal essay on judicial decisions as sources of law.

Gavel is down; you are now cleared to proceed to the next unit. Congratulations!!!

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Unit 5: Institutional Framework in the Administration of Justice

5.0 Unit Overview and Expected Outcomes
This unit aims at helping you to understand the institutional framework pertinent to the administration of justice in Zambia. At the end of the Unit, you should be able to identify key institutions in the administration of justice and demonstrate proper understanding of their respective roles.

Introduction
As per the Constitutional provisions, the Judiciary is the fundamental wing of Governemnet mandated with the task of administering justice. Other than the Judiciary, there are other key stakeholder institutions contributing to the full dispensation of justice- including Parliament which enacts the laws that the Judiciary enforce and the legal profession comprising of legal practitioners who are officers of the Courts.

Activity 5.1
Discuss the relationship between Parliament and the Judiciary with respect to the administration of Justice.

Topic 5.1: The Judiciary

The Zambian court system (Judiciary) consists of the Supreme Court; the High Court (and Industrial Relations Court- IRC); Subordinate Magistrates Courts; Small Claims Court; and Local Courts. Because the law administered by all except the local courts is

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based on English common law, decisions of the higher British courts are of persuasive value; in fact, a few statutes of the British Parliament that were declared by ordinance (decree) to apply to Zambia are in force so far as circumstances permit. Most of the laws presently on the statute book, however, have been locally enacted by ordinance or, since independence, by Zambian Acts.

The Supreme Court

By composition, the Supreme Court consists of the chief Justice and Supreme Court Justices. In terms of jurisdiction, the Supreme Court is a court of appeals. As such, it does not have original jurisdiction but appellate jurisdiction only. That is to say, no matters can be originally commenced therein; except for Presidential election petitions as per Article 41(2) (b) of the Constitution. The rest of the matters reach the Supreme Court by way of appeals.

The High Court

The High Court consists of the Chief Justice (who is an ex-offio member) and High Court Judges. In line with Section 9 of the High Court Act55 and entrenched in Article

94 (1) of the Constitution,56 the High Court has both original and unlimited jurisdiction
to hear and determine any matter- whether civil or criminal matters, except for matters
55

Cap 27 of the Laws of Zambia Cap 1, op cit

56

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exclusively reserved for the IRC. That is to say, matters may be commenced therein and it can also hear matters reaching it by way of appeals. On the authority of Zambia

Holdings Ltd & UNIP v Att. Gen,57 the unlimited jurisdiction of the High Court does not
mean that it has limitless powers.

Activity 5.2
Read the case of Brigadier General Godfrey Miyanda v Judge Mathew Chaila (1985) Z.R. 193 (H.C.) and write an elaborate essay on concept of functus officio as a protector of judicial independence.

The Industrial and Labour Relations Court

By ranking, the IRC is equal to the High Court and consists of the Chairperson and Members of the IRC. It has exclusive jurisdiction to hear and determine matters related to industrial and labour-related disputes as per the Industrial and Labour Relations

Act.58 By virtue of its past nature of being a tribunal and not a court, the IRC is not a
court of strict procedures. For example, in the case of Katwamba v Mulungushi Textiles

Ltd, it was held that the IRC aims at dispensing justice, thus not strictly bound by the
rigors and niceties of procedural rules.

57

(1994) ZR 22 Cap 269 of the laws of Zambia

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The Magistrates Subordinate Courts

The Magistrates Courts are composed of Magistrates of various classes of jurisdictions. Their jurisdictions are limited to their respective geographical boundaries. The classes are Magistrates Class III; Magistrates Class II and Magistrates Class I who are lay Magistrates. They are not qualified lawyers admitted to practice law as Advocates of the High Court. Professional Magistrates are those qualified to practice law as Advocates and include Resident Magistrates; Senior Resident Magistrates; Principle Resident Magistrates; and Chief Resident Magistrates.

Small Claims Court

There is a Small Claims Court established under the Small Claims Courts Act.59 The objective of the Act is to provide for the establishment, of to be situated in areas to be designated by the Chief Justice. The Small Claims Courts adopt arbitration as a mode of resolving disputes. The choice of this mode of dispute resolution is questionable because arbitration is typically adjudicative and is quite formal. Mediation would probably have been a more apt mode of resolving disputes in the Small Claims Courts. The Small Claims Court utilizes existing infrastructure such as school buildings, community halls and several others. Because the existing mechanisms of resolving disputes in both rural
59

Cap 47 of the Laws of Zambia

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and urban areas are adopted and adapted to suit the needs of the poor, the small claims court has proved effective.60

Local Courts
Local courts are governed by the Local Courts Act61 and employ the principles of customary law, which vary widely throughout the country. Lawyers are barred from participating in proceedings in such courts, and there are few formal rules of procedure. Presiding magistrates, who usually are prominent local citizens, have substantial power to invoke customary law, render judgments regarding marriages, divorces, inheritances, other civil proceedings, and rule on minor criminal matters.62 Local Courts have jurisdiction limited to their geographical boundaries- mostly in rural areas.

Activity 5.2
Read the Subordinate Courts Act and explain the jurisdictional limits of matters that each respective class of Magistrates may be seized with conduct thereof.

Tribunals
There is also a Land Tribunal and Revenues Appeals Tribunal that deal with very specific and specialized disputes touching on land and tax; respectively.

60

http://www.nyulawglobal.org/globalex/zambia.htm#Sourcesoflaw Retrieved 16 July 2013 Cap 29 of the Laws of Zambia http://jurist.law.pitt.edu/world/zambia.htm Retrieved 13 July 2013

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Topic 5.2: The Legal Profession

The legal profession is an important institution in the administration of justice in that it empowers legal practitioners with astile flair and skills to meaningfully plead and act on behalf of the suitors. Equally, the legal profession prepares and equips professional adjudicators for the task of administering justice.

Topic 5.3: Other Key Institutional Stakeholders

There are a number of other key institutions playing the role of stakeholders in the administration of justice and execution of judicial functions. They include the following among other:

Government Printers
The government of Zambia publishes a gazette that contains all relevant announcements and enactment or amendments of laws and regulations. It incorporates various government decisions, and once they feature in the Gazette, government decisions are deemed and laws and regulations are deemed to have been published and validly promulgated.

Gazettes are used by both the government and ordinary citizens to convey information to the public. The following are some of the normal uses of gazettes: issuance of Notices to creditors and debtors in administration of estates; publication of amendments to

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existing laws, regulations and rules; publications of newly enacted laws, regulations and rules; and publication of title deeds and deed of transfer in respect of property.

Law Association of Zambia

The Law Association of Zambia (LAZ) is a professional organization bringing together more than 900 legal practitioners. The Association was founded in 1973 and brings together all practicing members of the legal profession. Prior to this, the Association was called the Law Society of Zambia. As in most other jurisdiction, LAZ regulates the legal profession. Members of the association are Individual advocates practicing in Zambia as full members; and laws students enrolled in various Universities as associate members.

Amongst others, LAZ seeks to further the development of law as an instrument of social order and justice and as an essential element in the growth of society, to provide a means by which lawyers, whatever their particular field of activity, can participate together fully and effectively in the development of society and its institutions and To encourage lawyers as individuals to join actively in the life of, and identify themselves with people and to utilize their skills and training in their service.

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LAZ is a body corporate established by the Law Association of Zambia Act.63 Being a body corporate, the Association can sue and be sued and is competent to enter into any contractual obligation of its choice. The Associations main policy-making body is the Annual General Meeting, comprising all registered members of the Association, which membership presently stands at five hundred. In between the Annual General Meetings the Association elects an Executive, comprising the Chairperson, Vice-Chairperson, Hon. Secretary, Hon. Treasurer and thirteen Council Members to run the day-to-day affairs of the Association. The Association has various committees of duly appointed Advocates responsible for various activities of the Association; and is the legal umbrella of the National Legal Clinic for Women.

Activity 5.3
Discuss the role of the National Legal Clinic for Women in the administration of justice in Zambia

Law Reporting Council

Zambia has a law report series known as the Zambia Law Reports (ZLR) governed by the Law Reporting Council. These Law reports are available online and they are obtainable at the high court. The statutes of Zambia are available online and are listed by name. Supreme Court, High Court, Industrial Relations Court, Land Tribunal,

63

Cap 31 of the Laws of Zambia

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Revenue Tribunal rulings are also found online. The Zambian Law Journal is found at the school of Law in the University of Zambia.

The Laws of Zambia- Green Volume is a 1996 compilation of 26 Volumes containing all the laws and the entire respective various Republican Constitutions since independence. Volume 1 Contains the Index of the Laws of Zambia. The Laws are in read only PDF format. Zambia law Reports can also be obtained at the University of Pretoria. There is also Zambia Law Reports Consolidated Index containing the cumulative indexes of cases reported, cases referred to, legislation referred to, and subject matter from 1963 to 1978 Published in 1984, Council of Law Reporting, and High Court for Zambia (Lusaka, Zambia).

Legal Aid Board

The Legal Aid Act was enacted on 20th November 1967 to provide for legal aid in civil and criminal matters and causes to persons whose means are inadequate to enable them to engage practitioners to represent them. The Directorate of Legal Aid Board operated as a department within the Ministry of Legal Affairs and consequently enjoyed limited autonomy. However, by the Legal Aid (Amendment) Act the Legal Aid department was transformed into a Legal Aid Board.

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By the Legal Aid (Amendment) Act of 2005, the Legal Aid Board was re-constituted as a body corporate, with perpetual succession and legal capacity to sue and to be sued. Some of the functions include: (a) Facilitation of the representation of persons granted legal aid; (b) Assigning practitioners to persons granted legal aid under the Act; and (c) Advise the Minister on policies relating to the provision of legal aid and implement Government policies relating to the same.

The rigorous formalities surrounding the Legal Aid Board still make it difficult for the ordinary person to easily approach the Board.

National Institute for Public Administration

The National Institute for Public Administration (NIPA) is critical in the administration of justice in Zambia. It is the institution responsible for training of Public Prosecutors and lay Magistrates.

University Law Schools

There are two public Universities in Zambia offering a Bachelor of Laws Degree (LLB) namely; The University of Zambia; and the Copperbelt University. There are a number of law schools in various private universities including the University of Africa among others.

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Zambia Institute for Advanced Legal Education

The Zambia Institute for Advanced Legal Education (ZIALE) is the sole Bar School in Zambia. All lawyers graduating from various Universities both locally and from abroad have to be trained at ZIALE for possible admission to the Zambian Bar for them to practice law as Advocates of the High Court for Zambia (AHCZ).

Zambia Legal Information Institute

The Zambia Legal Information Institute (ZamLII) was established by the Law School of the University of Zambia in 1996, in partnership with Zamnet. It has received important start-up assistance from the Legal Information Institute of Cornell Law School. The Institutes aim is to improve access to judgments, statutes and other legal materials of the Republic of Zambia both within Zambia and elsewhere and to connect lawyers, judges, academics, students and others within Zambia with the growing collection of legal information available around the globe via the Internet.

ZamLII provides on-line research of Zambian and foreign legal information and general information about Zambia. Its collection of legal information on Zambia includes the Constitutional order, rules and selected decisions of the courts, selected Statues, legal commentary, a legal directory and profile information about the University of Zambia,

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School of Law. ZamLII also provides links to foreign legal information in and outside of Africa.

Activity 5.4
Write an essay on the contribution of the legal professional bodies to the effective functioning of the judiciary.

Well done, you have completed this unit but the scales of justice are yet to tilt in your favour. Attempt the Revision Questions below NOW!!!

5.5 Revision Questions

(1) Of what relevancy is the mandate of ZIALE to the dispensation of justice in Zambia? (2) Explain the connection between the legal framework and the institutional framework pertaining to the growth of the Zambian legal system. (3) How do the objectives of LAZ fit into the impartiality of the judiciary? (4) Distinguish a court from a tribunal. (5) Why is Judiciary the key institution in the administration of justice?

Gavel is down; you are now cleared to proceed to the next unit. Congratulations!!!

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Unit 6: Statutory Interpretation

6.0 Unit Overview and Expected Outcomes
This unit deals with the legal rules and techniques employed in interpreting statutes. At the end of the Unit, you should be able to demonstrate understanding of the relationship between case law and legislation in that case law gives life to legislation after the courts have interpreted the same. After studying this Unit you should also be able to distinguish canons of statutory construction from rules of ststutory interpretation.

Introduction
Legalism is the excessive reliance on the formal, literal interpretation, rather than the spirit, of the law.64 A good legal interpretation of statutes must take into account relevant considerations and omit to take into account irrelevant considerations. Below are the rules that should help in deciding which considerations are relevant and irrelevant in the process of statutory interpretation.

Topic 6.1: Legislation and Case Law

Law may be in form of either legislation or case law. Legislation connotes the authority which promulgated a written. It includes statutory law enacted by the legislature;
64

Curzon, op cit, p 224

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regulatory law, promulgated by the Executive branch agencies pursuant to delegation of rule-making authority by the legislature. On the other hand, case law is common law which is precedent-setting decisions issued by courts or by quasi-judicial tribunals within agencies.

Classification of Case Law

Case law may be classified into two categories namely: (1) pure case law and; (2) interstitial case law. Pure case law emanates from traditional and inherent authority of courts to define the law, even in the absence of an underlying statute. Examples include most pre-20th Century criminal law and procedural law, plus most modern contract law and the law of torts. On the other hand, interstitial case law consists of court decisions which analyse, interpret and determine the fine boundaries and distinctions in the law that is promulgated by other bodies. This body of common law includes judicial interpretation of the Constitution, legislative statutes, and/or agency regulations, and involves the application of law to the specific facts of a matter.65

Topic 6.2: Rules of Statutory Interpretation

Statutory interpretation is the process by which courts interpret and apply legislation. Some amount of interpretation is always necessary when a case involves a statute.
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http://en.wikipedia.org/wiki/Common_law Retrieved 17 July 2013

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Sometimes the words of a statute have a plain and straightforward meaning. But in many cases, there is some ambiguity or vagueness in the words of the statute that must be resolved by the judge. To find the meanings of statutes, judges use various tools and methods of statutory interpretation, including traditional canons of statutory interpretation, legislative history, and purpose.66 In common law jurisdictions, the judiciary may apply rules of statutory interpretation to legislation enacted by the legislature or to delegated legislation such as administrative agency regulations. There are a number of rules employed in statutory interpretation including the following,

inter alia.

6.2.1 Literal Rule

The literal rule of statutory interpretation should be the first rule applied by judges. Under the literal rule, the words of the statute are given their natural or ordinary meaning and applied without the judge seeking to put a gloss on the words or seek to make sense of the statute.67 Examples of cases where the literal rule has been used include R v Harris;68 Fisher v Bell;69 and Whitely v Chappel.70
66

https://en.wikipedia.org/wiki/Statutory_interpretation Retrieved 17 July 2013 http://www.e-lawresources.co.uk/Literal-rule.php Retrieved 15 July 2013 (1836) 7 C & P 446 [1961] 1 QB 394

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Advantages of the Literal Rule

This rule has about five key advantages namely that it: i. ii. iii. iv. v. Sticks to the possible ordinary meaning hence promoting clarity; Restricts the role of the judge; Provides no scope for judges to use their own opinions or prejudices; Recognises Parliament as the supreme law maker; and Upholds the separation of powers.

6.2.2 Golden Rule

In law, the Golden rule, or British rule, is a form of statutory construction traditionally applied by English courts. The other two are the plain meaning rule (also known as the literal rule) and the mischief rule. The golden rule allows a judge to depart from a word's normal meaning in order to avoid an absurd result.

The term golden rule seems to have originated in the 1854 case of Mattison v. Hart71 as per Chief Justice Jervis propounding and implies a degree of enthusiasm for this particular rule of construction over alternative rules that has not been shared by all subsequent judges. For example, Viscount Simon made a point of including this note in

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(1868) LR 4 QB 147 [1854] 14 C.B. 357, at 385

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a 1940 decision: The golden rule is that the words of a statute must prima facie be given their ordinary meaning.72

Like the plain meaning rule, the golden rule gives the words of a statute their plain, ordinary meaning. However, when this may lead to an irrational result that is unlikely to be the legislature's intention, the golden rule dictates that a judge can depart from this meaning. In the case of homographs, where a word can have more than one meaning, the judge can choose the preferred meaning; if the word only has one meaning, but applying this would lead to a bad decision, the judge can apply a completely different meaning.73

History and evolution of the Golden Rule

This rule is founded on Justice Parke (later Lord Wensleydale)s enunciation in Becke v

Smith74 where he stated thus: It is a very useful rule in the construction of a statute to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the legislature to be collected from the

72

Nokes v. Doncaster Amalgamated Collieries, [1940] A.C. 1014, at 1022

http://en.wikipedia.org/wiki/Golden_rule_%28law%29 Retrieved 10 July 2013 (1836) 2 M&W 195

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statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified so as to avoid such inconvenience but no further.

Twenty years later, Lord Wensleydale restated the rule in different words in Grey v

Pearson75 thus: [I]n construing statutes, and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity or inconsistency, but not farther.

With time, the rule continues to become more refined and therefore to be a more precise and effective tool for the courts. More than a century after Grey v. Pearson, a court added this caveat: Nowadays we should add to 'natural and ordinary meaning' the words in their context and according to the appropriate linguistic register.76

In summary, this rule may be used in two ways. It is applied most frequently in a narrow sense where there is some ambiguity or absurdity in the words themselves. For

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(1857) 6 HL Cas 61, 106; 10ER 1216, 1234 Lord Simon of Glaisdale, reasons for judgment in Stock v. Frank Jones (Tipton) Ltd. [1978] 1 W.L.R. 231, at 235

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example, imagine there may be a sign saying Do not use lifts in case of fire. Under the literal interpretation of this sign, people must never use the lifts, in case there is a fire. However, this would be an absurd result, as the intention of the person who made the sign is obviously to prevent people from using the lifts only if there is currently a fire nearby.

The second use of the golden rule is in a wider sense, to avoid a result that is obnoxious to principles of public policy, even where words have only one meaning. The rule was applied in this second sense in Sigsworth, Re, Bedford v Bedford
77

where the court

applied the rule to section 46 of the Administration of Estates Act 1925. This statute required that the court should issue someone's inheritance in certain circumstances.

The court held that no one should profit from a crime, and so used the golden rule to prevent an undesirable result, even though there was only one meaning of the word issue. A son murdered his mother and then committed suicide. The courts were required to rule on who then inherited the estate: the mother's family, or the son's descendants. There was never a question of the son profiting from his crime, but as the

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(1935) Ch 89

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outcome would have been binding on lower courts in the future, the court found in favour of the mother's family.

6.2.3 Mischief Rule

The mischief rule is one of three rules of statutory construction traditionally applied by English courts. The other two are the plain meaning rule (also known as the literal rule) and the golden rule. The main aim of the mischief rule is to determine the mischief and defect that the statute in question has set out to remedy, and what ruling would effectively implement this remedy. The rule was first laid out in a 16th century ruling of the Exchequer Court.78

Meaning and Use of the Mischief Rule

This rule was coined in Conway v Rimmer79 as a rule of construction stating that judges can apply in statutory interpretation in order to discover Parliament's intention. In applying the rule, the court is essentially asking the question: what was the mischief that the previous law did not cover, which Parliament was seeking to remedy when it passed the law now being reviewed by the court?

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http://en.wikipedia.org/wiki/Mischief_rule Retrieved 12 July 2013 [1968] AC 910

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The Mischief Rule is of narrower application than the golden rule or the literal meaning rule, in that it can only be used to interpret a statute and, strictly speaking, only when the statute was passed to remedy a defect in the common law. Legislative intent is determined by examining secondary sources, such as committee reports, treatises, law review articles and corresponding statutes.

The application of this rule gives the judge more discretion than the literal and the golden rule as it allows him to effectively decide on Parliament's intent. It can be argued that this undermines Parliament's supremacy and is undemocratic as it takes lawmaking decisions away from the legislature. It is trite that the mischief rule produces more sensible outcomes than the literal rule.

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Case Study 6.1: Mischief Rule- Establish the Intent of Parliament Smith v Hughes [QBD 1960]
Brief Facts: Under the UK Street Offences Act [1959], it was a crime for prostitutes to loiter or solicit in the street for the purposes of prostitution. The defendants were calling to men in the street from balconies and tapping on windows. Legal Issue: The defendants claimed they were not guilty as they were not in the street. Holding: The judge applied the mischief rule to come to the conclusion that they were guilty as the intention of the Act was to cover the mischief of harassment from prostitutes.

History of the Mischief Rule The Mischief rule was first set out in Heydon's Case80 where the court ruled that there were four points to be taken into consideration when interpreting a statute: first, what was the common law before the making of the Act? Second, what was the mischief and defect for which the common law did not provide? Third, what remedy Parliament hath resolved and appointed to cure the mischief; and fourth, what is the true reason of the remedy? Traditional Use of the Mischief Rule In the century in which it was created, and for some time thereafter, the mischief rule was used in a legislative environment very different than the one which has prevailed in the past two centuries. As Elmer Driedger notes:

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[1584]76 ER 637 3 CO REP 7a

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[S]ixteenth-century common law judgeslooked upon statutes as a gloss upon the common law, even as an intrusion into their domain. Hence, statutes were viewed from the point of view of their effect upon the common law, as adding to it, subtracting from it or patching it up. Then also, in the time of Heydons Case the judges paid more attention to the spirit of the law than to the letter. Having found the mischief they proceeded to make mischief with the words of the statute. They remodelled the statute, by taking things out and putting things in, in order to fit the mischief and defect as they had found them.81 Modern Use of the Mischief Rule Modern courts continue to apply the rule in a more restricted manner, and generally with a greater regard for the integrity of the statutes which they are interpreting. Driedger observes thus: [T]o this day, Heydons Case is frequently cited. The courts

still look for the mischief and remedy, but now use what they find as aids to discover the meaning of what the legislature has said rather than to change it.82
Driedger further argues that this modern use of the mischief rule ought to be understood as one of the components of what he characterized as the modern method of statutory construction, rather than a stand-alone rule serving (as it formerly had), as an alternative to the methods of construction proposed by the plain meaning rule and the golden rule.83
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Driedger, E., The Construction of Statutes (1983) 2nd ed, Butterworth, Toronto, pp 74-75.

82

Ibid Ibid

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Advantages of the Mischief Rule Below are the three major advantages of the Mischief Rule: Firstly, in a common law jurisdiction, the existence of precedent and the knock-on effects of construing a statute prevent misuse of the rule. Secondly, the Law Commission of the UK and most eminent scholars see it as a far more satisfactory way of interpreting acts as opposed to the Golden or Literal rules; and thirdly, it usually avoids unjust or absurd results in sentencing. Disadvantages of the Mischief Rule Below are equally three disadvantages associated with the Mischief Rule: first, it is ostensibly out-dated as it has been in existence and use since the 16th century when common law was the primary source of law. Secondly, it gives too much power to the unelected judiciary which is argued to be undemocratic. Thirdly, the rule can make the law uncertain. Topic 6.3: Canons of Statutory Interpretation In addition the above rules or techniques of interpretation, there are a number of canons of statutory interpretation. Also known as canons of construction, canons give common sense guidance to courts in interpreting the meaning of statutes. Most canons emerge from the common law process through the choices of judges. Proponents of the use of canons argue that the canons constrain judges and limit the ability of the courts
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to legislate from the bench. Critics argue that a judge always has a choice between competing canons that lead to different results, so judicial discretion is only hidden through the use of canons, not reduced.84

Textual Canons
Textual canons are rules of thumb for understanding the words of the text. Some of the canons are still known by their traditional Latin names. Some of the textual canons include:

1. Plain Meaning Canon

When writing statutes, the legislature intends to use ordinary English words in their ordinary senses. The United States Supreme Court discussed the plain meaning canon in

Caminetti v United States,85 where it was stated that [i]t is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain... the sole function of the courts is to enforce it according to its terms. And if a statute's language is plain and clear, the Court further warned that ...the duty of interpretation does not arise, and the rules which are to aid doubtful meanings need no discussion.
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https://en.wikipedia.org/wiki/Statutory_interpretation Retrieved 12 July 2013 242 U.S. 470 (1917)

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2. Ejusdem generis Canon

Ejusdem generis is Latin for: of the same kind, class, or nature. The canon simply
entails that when a list of two or more specific descriptors is followed by more general descriptors, the otherwise wide meaning of the general descriptors must be restricted to the same class, if any, of the specific words that precede them. For example, where cars, motor bikes, motor powered vehicles are mentioned, the word vehicles would be interpreted in a limited sense. Therefore vehicles in this case cannot be interpreted as to include airplanes. 3. Expressio unius est exclusio alterius Expressio unius est exclusio alterius is Latin for: the express mention of one thing excludes all others. Items not on the list are impliedly assumed not to be covered by the statute or a contract term.86 However, sometimes a list in a statute is illustrative, not exclusionary. This is usually indicated by a word such as includes or such as. 4. In pari materia In pari materia is Latin for: upon the same matter or subject. When a statute is ambiguous, its meaning may be determined in light of other statutes on the same subject matter.

86

Lhauge, E., Statutory Default Rules: How to Interpret Unclear Legislation (2008) Harvard University Press, Boston, pp

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5.

Noscitur a sociis

Noscitur a sociis is Latin for: a word is known by the company it keeps. When a word
is ambiguous, its meaning may be determined by reference to the rest of the statute. Activity 6.1
What is the difference, if any, between rules of statutory interpretation and canons of statutory construction?

Well done, you have completed this unit but the scales of justice are yet to tilt in your favour. Attempt the Revision Questions below NOW!!! Revision Questions
(1) (2) (3) (4) (5) With the aid of case law, discuss two major canons of construction commonly used in Zambia. Of what relevancy is the Ejusdem generis canon in the Zambian jurisdiction? In your considered opinion, should judges be given the absolute liberty to interpret statutes? Why bother about rules of statutory interpretation? Critique the modern use of the mischief rule.

Gavel is down; you are now cleared to proceed to the next unit. Congratulations!!!

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Unit 7: Precedents, Doctrine and Technique

Topic 7.0: Introduction
This Unit concerns itself with the way courts treat past curt decisions. It deals with situations where lowers courts are supposed to be bound by past decisions from higher courts. The Unit also deals with instances in which lower local are not bound but simply persuaded by past decisions. At the end of this Unit you are expected to demonstrate critical understanding of matters pertaining to the aforementioned.

Topic 7.1: Judicial Decisions

Precedent serves as the governing principle of Zambias common law. Deciding courts and lower courts with similar jurisdiction to the deciding court are bound by precedent. Therefore, any case that comes before the same or a lower court with substantially similar facts must be decided in the same way, unless the deciding court, for good reason, decides to overturn and set a new precedent. Higher courts are not bound by the decisions of lower courts. Courts with different jurisdiction (e.g., the Industrial Relations Court) are not bound to the decisions of other courts, but may find those decisions persuasive if only to provide the system with consistency. Decisions from

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South Africa and England are only persuasive, unless there is no Zambian authority to provide guidance, in which case the English law becomes precedent.87

Topic 7.2: Common Law and Zambia

Also known as case law or precedent, Common Law is law developed by judges through decisions of courts and similar tribunals. By contrast, civil law (codified/continental law) is set on statutes adopted through the legislative/parliamentary process and/or regulations issued by the executive branch on base of the parliamentary statutes.

A common law system is a legal system that gives great potential precedential weight to common law, on the principle that it is unfair to treat similar facts differently on different occasions. The body of precedent is called common law and it binds future decisions. In cases where the parties disagree on what the law is, a common law court looks to past precedential decisions of relevant courts.

Stare Decisis
If a similar dispute has been resolved in the past, the court is bound to follow the reasoning used in the prior decision. This principle is known as stare decisis. If, however, the court finds that the current dispute is fundamentally distinct from all

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previous cases (called a matter of first impression), judges have the authority and duty to make law by creating precedent. Thereafter, the new decision becomes precedent, and will bind future courts.

In practice, common law systems are considerably more complicated than the simplified system described above. The decisions of a court are binding only in a particular jurisdiction, and even within a given jurisdiction, some courts have more power than others. For example, in most jurisdictions, decisions by appellate courts are binding on lower courts in the same jurisdiction, and on future decisions of the same appellate court; but decisions of lower courts are only non-binding persuasive authorities. Interactions between common law, constitutional law, statutory law and regulatory law also give rise to considerable complexity. However, stare decisis, the principle that similar cases should be decided according to consistent principled rules so that they will reach similar results, lies at the heart of all common law systems.

Well done, you have completed this unit but the scales of justice are yet to tilt in your favour. Attempt the Revision Questions below NOW!!!

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Revision Questions
(1) (2) (3) (4) (5) Discuss the applicability of common law in Zambia What are the fundamental principles underlying stare decisis? In your considered opinion, should lower courts be bound by the reasoning in past decision? Explain. Does, the doctrine of precedents buttress predictability in the law? Explain. Critique the modern application of precedents.

Gavel is down; you are now cleared to proceed to the next unit. Congratulations!!!

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Unit 8: Lawyers and the Court

Topic 8.0: Introduction
This Unit lays a foundation on legal skills and empathizes how lawyers should interact with the courts of law. Lawyers are officers of the court and such must demean themselves to the bench in both their conduct and behaviour. At the end of this Unit you are expected to understand the mannerisms, conduct, dress code and behavour of the calling in which you now are. Section 2 of the LAZ Act88 defines a lawyer as to include a law student pursuing a law degree in a recognized University. As such, you are a lawyer thus must step to the ethics and demands of the noble profession which you now profess to be part thereof.

Topic 8.1: Lawyers Dress Code

A lawyers dress code is governed by the Practice Directive of 1977 as amended in 2005. Under here, both male and female lawyers must wear when appearing in court. The colors for the suit are restricted to navy blue; black; and charcoal grey. For soft linen, female counsel must wear a blouse while male counsel must wear long sleeved shirts. The colours in both instances must be elegant and not flamboyant. That is to say, white shirt or white blouse and black suit in criminal matters. A red necktie is diplomatically
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the best for male counsel. In civil matters, both male and female counsel may opt for sky blue or white soft linen (shirt or blouse respectively).

Female counsel may wear slacks provided they are not tight to their skin. If they opt for skirts, the same should be long enough to go at least down their knees. Shoes for both counsel must be black in colour and closed; not too high-heeled and not flamboyantly fancy. Hair style for both male and female counsel must be smart and simple- not fancy or exaggerated.

Topic 8.2: Etiquette to the Bench

The language of a lawyer must demonstrate courtesy and etiquette to the Bench. The following is the right appellation for various levels of Adjudicators according to their ranks:

i.

Chief Justice; Deputy Chief Justice and Supreme Court Adjudicators are referred to as Honourable Justices of the Supreme Court. Your address the as: My lord(s);

Mi lord(s); or your lordship(s) if male. If female, you address them as: My lady(ies); Mi Lady (ies); or your ladyship(s).

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ii.

High Court Adjudicators and Adjudicators of the Commercial Registry are referred to as Honourable Judges of the High Court. You address them as: Your

Honour whether male or female.

iii. Adjudicators of the Industrial Relations Court are referred to as Honourable Members of the Industrial Court. You also address them as: Your Honour whether male or female.

iv.

Subordinate Courts Adjudicators are referred to as Honourable Magistrates of the Subordinate Court. Your address them as: Your worship whether male or female.

v.

Adjudicators of the Small Claims Court are referred to as Commissioners of the Court. You address them as: Sir if male or Madam if female.

vi.

Local Courts Adjudicators are referred to as Honourable Magistrates of the Local Courts. Your address them as: Your worship whether male or female.

vii.

Adjudicators of various Tribunals are referred to as Commissioners of the Tribunal. You address them according to their rank or designation of title. For

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example, if a Supreme Court Justice presides on a tribunal you address them as

my lord.

Topic 8.3: Problem Solving Approaches- IMC and IRAC/CLEO

This topic deals with the two main approaches employed in legal works to solve problems. The same are IMC and IRAC or CLEO as is sometimes referred to.

8.3.1 IMC
This approach is utilized in writing essays or legal briefs that are not problem-based or hypothetical scenarios. IMC is an abbreviation for: (i) Introduction; (ii) Main Text; and (iii) Conclusion.

Introduction
This part of the legal brief introduces the subject matter to the reader. It gives a background and summary of what the paper will discuss in details.

Main Text
This part forms the main body of the paper. It discusses all the pertinent matters related to the subject matter under discussion.

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Conclusion
This part is a summary of the work done in the main text. It summarizes and recapitulates the subject matter. It gives a consolidation of all the matters by way of summary.

8.3.2 IRAC:
IRAC is an acronym of the approach used in legal works to solve practical situational questions. The acronym is thus: I: Identify pertinent legal issues from the given set of facts; R: Relate on the law applicable to the identified legal issues. That is to say, discuss the law relevant to the facts. Here you do not apply the law to the fact- you just discuss the law; A: Apply the law to the facts; and C: Conclude on the matter. Give a logical conclusion on the matters above. Under this approach, you begin by identifying the pertinent legal issue(s) from the given set of facts. Then you relate on the law applicable to the identified legal issue(s). At this point, you do not explain the connection between the law and the case hand; but simply state and discuss the applicable law in general. Thereafter, you apply the law to the identified legal issue(s). Finally, you must conclude on the subject matter by directly

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responding to the instructions given. That is to say, if the instructions were, for example, that you render legal advice on the given set of facts- in conclusion you must ADVISE. If on the other hand, for example, your instructions were that you render a legal opinion on the given set of facts- in conclusion you must OPINE.

Activity 8.2
Use a hypothetical situation of pour own imagination to apply IRAC and write a legal opinion on the same using IRAC.

8.3.3: CLEO
This approach is similar to IRAC. It stands for: (i) Claim; (ii) Law; (iii) Explanation; and (iv) Opinion. It is usually applicable in situations where you are instructed to render a legal opinion. Under this approach, you first identify the legal claim(s), then you identify the law applicable to the claim, then you explain how that law is applicable to the identified claim. Lastly, you opine on the subject by giving your opinion thereon.

Well done, you have completed this unit but the scales of justice are yet to tilt in your favour. Attempt the Revision Questions below NOW!!!

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Revision Questions
(1) (2) (3) (4) (5) Can the CLEO approach be applied in situational question other than rendering opinions? What is the importance of the IRAC approach in the today Zambian litigation system? Why should a legal brief question be handled different from opinion rendering questions? Explain the IMC approach to problem solving in law. What is the justification for studying legal process with respect to solving legal problems?

Gavel is down; you are almost there. Now proceed to the last unit and attempt the ultimate revision. Congratulations!!!

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Unit 9: Sample Examination Questions

9.0 Unit Overview and Expected Outcomes
This unit provides you with an opportunity to evaluate yourself in terms of your preparedness to seat for an examination in this semester course. At the end of unit you should be able to assess your levels of understanding Legal Process.

9.1 Compulsory Questions

9.1.1: Distinguishing Cases- 3 Grounds

Mrs Kumeka Chidongo- Chibombebombe was appointed as a Junior Distributions

Supervisor in the employ of Nyumba Kushota Quarries Co Ltd on 10 February 2009 after 7 years of roaming the streets of Lusaka job- hunting since her acquisition of a Diploma in Stone Crushing Technology from Kapamwamba Technical College. Being a fulltime employee, she was allocated one of the flashy flats that the company had just secured. On 24 December ultimo, she received a letter from the companys Properties and Estates Manger instructing her to vacate the flat as it had been reassigned to the newly employed Finance Manager, one Dr Ndeisa Uzachokamo who happens to be Chidongos former secret admirer whose love proposal to her she unceremoniously turned down during their secondary school days about 15 years ago.

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Feeling humiliated, segregated against on the basis of gender, demeaned and unappreciated by the company... spending her entire festive period under distress and anguish, Chidongo has just commenced proceedings in the Industrial Relations Court seeking, inter alia, an interlocutory Injunction to restrain the company from evicting her until the matter is disposed of. You are a Junior Advocate practising under the name and style of Messrs CJNSIPHO

Legal Practitioners of 3rd Floor Mukuba Pension House, Kitwe. Your Principal, Adv cjnsipho, being Counsel seized with conduct of the matter on behalf of the Respondent
Company has this morning instructed you to prepare a legal opinion in defence relying

section 108 of the Industrial and Labour Relations Act, Cap 269 of the laws of Zambia
by distinguishing the case in casu from that of Rachel Sakala v Attorney General,

1991/HP/2082. With adequate reference to both case law and eminent publications,
kindly proceed to advise your Principal hereon the rules governing distinguishing cases as a somewhat aspect of statutory interpretation. [30 marks]

9.1.2: Rules of Interpretation Discuss the validity of the case of Godfrey Miyanda v Mathew Chaila in the fight for judicial independence in Zambia. [30 marks]

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9.1.3: Rules of Interpretation

Chimutengo Municipal Council has been sued by the family of Schmidt Chabipa, a 9
year old mentally retarded boy. Facts in issue are that Mapeveto Chinangwa, who is a certified freelancer nanny, was hired by the Local Authority herein to assist in the running of its public day care and kindergarten in her area of specialty. On the material day, the plaintiffs caught the aforementioned Mapeveto sexually molesting the lad; resulting in the lawsuit in casu. The lead prosecutor herein has conceded to the voire

dire and preliminary objection by the family insisting on suing the Counsel as the
employer under the doctrine of vicarious liability; notwithstanding the ambiguity of the wording thereof the Statute being relied on chiefly. You are a newly admitted Advocate of the High Court for Zambia celebrating your practice as such under the name and style of Messrs Cjnsipho Legal Practitioners where your Principal, Adv. Cjnsipho, being counsel seized with conduct of the matter on behalf of the defendant Council, has just instructed your learned self to prepare a concise and well-reasoned legal opinion hereon by citing at least two decided cases pertinent hereto; with respecting to whether or not the court should proceed in the face of alleged ambiguity and prima facie difficulties in ascertaining the unequivocal intent of the legislators as deducible from the Act itself. Kindly proceed as instructed. [30 Marks] 9.2 Optional Questions 7.2.1: Rules of Interpretation With specific reference to the case of Grey v Pearson (1857) 6 HLC 61, discuss the scope and ambit of the Golden Rule. [20 Marks]
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7.2.2: Institutional Framework With the aid of a decided case, explain the role of institutions other than the judiciary in the administration of justice in Zambia. [20 Marks] 7.2.3: Functions of the Courts- Other than Statutory Interpretation With the aid of at least 3 decided cases, expatiate on the role of Adjudicators as true givers of law to society. [20 Marks]

Both gavels are down, the Mother of Justice has ADJUDJED YOUR CASE. THE Verdict IS reserved till after the exams- All the best!!!

Disclaimer
This Module is made possible by the generous funding of the University of Africa through the Zambian Campus (UoA). The contents are the responsibility of the author [Adv. Justin Sipho Chitengi] and do not necessarily reflect the views of any other organizations the author may be associated with.

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