CAVENDISH UNIVERSITY – ZAMBIA

ASSIGNMENT BRIEF AND FEEDBACK FORM

108-886
STUDENT NO
MODULE: Legal Process

LECTURER: Mr Jeremy Chituntu

MODULE CODE: CUZL211

ASSIGNMENT NUMBER: 1
DATE HANDED OUT: 27 February 2023
DATE DUE IN
12 March 2023
DAY/EVE/DL: Distance Learning
ASSIGNMENT BRIEF

Details for the Assignment

Question A
(1) Explain to Bibian the Mode of commencement she can use and why she needs to use that
mode, if she opted to commence an action at the Subordinate Court as opposed to Chikwa
Courts (small claims court)Details for the Assignment
(II) Draft the necessary affidavit verifying debt that Bibian may really upon in court. 7mrks
Question B
Bibian is also curious to know the various legal systems in the world, at least try to explain to her
about four legal systems.
Question C
She seems to be interested in the law as she at some point in her life time wanted to study law, she
further asks you to elucidate the differences between African customary law and English Common
law
This assignment is intended to assess the student’s knowledge in all of the following areas.
However, greater emphasis should be given to those item marked with a

(Tutor: - please tick as applicable)

SL ASSESSMENT SKILLS Please Tick
No
1 Good and adequate interpretation of the question

2 Knowledge and application of the relevant theories

3 Use of relevant and practical examples to back up theories

4 Ability to transfer and relate subject topic to each other

5 Application and use of appropriate models

6 Evidence of library research

7 Knowledge of theories

8 Written business English communication skills

9 Use of visual (graphs) communication

10 Self assessed ‘time management’

11 Evidence of field research

Tutor’s Marks contribution

(Administrative only)

LECTURER’S FEEDBACK
QUESTION A
QUESTION 1
The court that Bibian Munachonga Mbewe can commence her claim is through the subordinates
because they have jurisdiction over such amount of debts. However, it should be noted that
matters are to be commenced in the manner prescribed by the law1.
There are three main ways by which a case may be commenced in the Subordinate Courts by
way of Writ of Summons, Default writ of summons, By Originating Notice of Motion,
Originating summons, and Petition.
The best mode that Bibian Munachonga Mbewe can use is through the Default writ of summons.
The Default writ of summons is provided under Order 6 rule 4(1)2 “ When the claim is in
respect of a debt or liquidated demand, the plaintiff may file a default writ of summons in
the prescribed form, or a form to the like effect, and at the time of the filing of such default
writ of summons shall file an affidavit verifying such debt or demand and thereupon such
affidavit shall, for the purpose of service upon the defendant, be treated in all ways as part
of such default writ of summons”.
The default writ of summons comprises the following:
Default writ of summons will be applicable in situations, where the relief sought by the Plaintiff
as liquidated damages. The relief that Bibian claims are liquidated damage because the amount
in issue is Zmw 35,000.00.
“AFFIDAVIT VERIFYING DEBT” accompanies default writ of summons- and this Affidavit is
sworn by the Plaintiff and not by counsel representing the plaintiff.
The default writ of the summons should be endorsed with the names of the parties (plaintiff +
Defendant and their respective service addresses).

QUESTION (II)
1
New Plastic Industries v Commissioner of Lands [2001] SCZ No 1
2
CHAPTER 28 - SUBORDINATE COURTS ACT: SUBSIDIARY LEGISLATION
IN THE SUBORDINATE COURT 2022/CRMP/019
OF THE FIRST CLASS
HOLDEN AT LUSAKA

BETWEEN:
BIBIAN MUNACHONGA MBEWE PLAINTIFF
AND
NELSON NAWINA DEFENDANT

AFFIDAVIT VERIFYING DEBT

I, BIBIAN MUNACHONGA MBEWE of kabulonga, along Kudu Road in the City and
Province of Lusaka of the Republic of Zambia, do hereby MAKE OATH and SAY as follows:
1. That my full names and residential address are as stated above.
2. That I am a Zambian National
3. That I reside at Kabulonga along Kudu Road, Lusaka as aforesaid
4. That I am the Plaintiff herein and swear this Affidavit from facts within my personal
knowledge.
5. That on 10th May 2022, the Defendant borrowed the amount of ZMW 35,000.00
6. That the amount borrowed was supposed to be settled after the period of one month,
which the Defendant has since defaulted to pay till date and there is now produced and
marked “BMM 1” a true copy of the Loan Agreement.
7. That on diverse occasions, I have demanded payment of the said amount from the
Defendant, but to no avail
8. That I verily believe that the Defendant has no Defense to my claim
9. That the facts deposed to herein are true and correct.
SWORN by the said ]
BIBIAN MUNACHONGA MBEWE at Lusaka ] _________________
This ___ day of ________ 2022 ] Deponent
Before Me ________________________________
COMMISSIONER FOR OATHS

IN THE SUBORDINATE COURT 2022/CRMP/019

OF THE FIRST CLASS
HOLDEN AT LUSAKA

BETWEEN:
BIBIAN MUNACHONGA MBEWE PLAINTIFF
AND
NELSON NAWINA DEFENDANT

CERTIFICATE OF EXHIBIT

This is the exhibit referred to as “BMM 1” in the Affidavit of BIBIAN MUNACHONGA

MBEWE.

This ______________________________day of ________________________________2022.

____________________________________
COMMISSIONER FOR OATHS

IN THE SUBORDINATE COURT 2022/CRMP/019

OF THE FIRST CLASS
HOLDEN AT LUSAKA

BETWEEN:
BIBIAN MUNACHONGA MBEWE PLAINTIFF
AND
NELSON NAWINA DEFENDANT

AFFIDAVIT VERIFYING DEBT

NKOPEKA LEGAL PRACTITIONERS

Central Park
P.O. Box 33524
Cairo Road
LUSAKA
ADVOCATES FOR THE PLAINTIFF

QUESTION B
1.1 WHAT IS A LEGAL SYSTEM

The legal system includes rules, procedures, and institutions by which public initiatives and
private endeavors can be carried out through legitimate means. In other words, is a system for
interpreting and enforcing the laws. It elaborates on the rights and responsibilities in a variety of
ways3. However, it should be noted that the National laws of each country differ and many of the
systems exhibit certain commonalities of principle and practice because of the historical
background of most countries they tend to replicate often with minor variations, the traits of
several major legal systems4. The four major legal systems of the world consist of civil law,
common law, customary law, and Islamic law. The essay will discuss the above legal systems
below.

2.0 VARIOUS LEGAL SYSTEMS

2.1 COMMON LAW LEGAL SYSTEM

Common Law is the law created from the customs and habits of people when no written laws
existed. Its development came about as Judges examined disputes between parties and made
decisions based on what was customary in the place and what was believed to be fair and
equitable. The only guidance that the judges had were the people and times themselves and the
opinions or decisions made by other judges in the past.

As the Common law developed, so did the need to record the decisions being made. The
recorded decisions are commonly referred to as case law. Case law developed from the strictures
of the common law in England and is the system used today by the courts. Since judges needed
guidance in evaluating current situations based on previous decisions and the related legal
principle, the doctrine of stare decisis and precedent emerged.

Stare decisis doctrine means “let the decision stand” once the court has set down a legal
principle, and the Judges will follow that principle in future cases in Chongesha v Securiror
Zambia Limited5 it was held that “It can, however, only be for very compelling reasons that
the court would refuse to follow a decision of the court and only where the court considered
that the previous decision was wrong. The relaxation of the rule is not its abandonment and
ordinarily, the rule of stare decisis should be followed. Abandonment of the rule would make
the law an abyss of uncertainty”. The doctrine establishes stability and consistency in the legal
systems, for without the doctrine of stare decisis the system would be chaotic and arbitrary.

The common law practices an adversarial system that is used to determine facts in the
adjudication process in which the parties (Defense and Prosecution) in a legal case present their
arguments, submit and review evidence, interview witnesses, and otherwise control the

3
https://www.akdlawyers.com/what-is-the-legal-system/#:~:text=The%20legal%20system%20includes%20rules,in
%20a%20variety%20of%20ways. Accessed on 7 March 2023 at 10:06 am
4
Mulela Magret Manulula , Legal Process : Zambia Cases Legislation and Commentaries at page 17
5
(Appeal 102 of 2005) [2014] ZMSC 58 (23 June 2014);
information presented to the judge. The Judge acts as the arbiter of the law and the decider of the
case.

2.3 CIVIL LAW LEGAL SYSTEM

Civil law is also sometimes known as a civil code system or even by other names, such as
Roman, Continental, or Napoleonic law. All of these names refer to eras or places in which civil
law was developed. What makes this system so unique is that it is a system of law that is based
on a collection of laws or codes brought together, known as codification6.

The Civil law systems have comprehensive, continuously updated legal codes that specify all
kinds of matters that can be brought before a court, as well as the application procedure and the
appropriate punishment for each offense. More specifically, there is often a code that deals with
the core areas of private law that deals with such things as business practices and negligence
lawsuits, referred to as civil code, and a code that deals with criminal practices referred to as the
penal or criminal code. For example, Peter breaks into a house and stores some items from the
house in an area whose legal system was organized under a civil law system. The Judge would
look at the exact laws that were written down regarding what types of procedures need to be
followed to handle the crime of breaking into the house and the laws that dictate what type of
punishment should be meted out as a result.

The system practices an inquisitorial system of justice. In this system, the judge is responsible
for discovering the facts of the case by questioning each party, while simultaneously representing
the interests of the state. The judge drives the questioning of witnesses and the collection and
presentation of evidence. The legal counsel only suggests paths of inquiry and follows up the
judge's questions with their own. The inquisitorial system relies on the judge to drive the
exploration of evidence.

2.4 CUSTOMARY LAW LEGAL SYSTEM

Customary law is the oldest form of law known to a Man 7. Custom can be defined as a rule of
conduct obligatory on those within its scope established by long usage. A valid custom has the
force of law, a valid custom must be immemorial antiquity certain and reasonable obligatory not
repugnant to Statute law though it may derogate from the common law. General customs are
those of the whole country. Local customs of certain parts of the country8.

The requisites that make custom legally binding will be discussed below

(a)Proof of custom
If in a case before the court, one of the parties alleges that the rights of the parties are regulated
by a custom or trade usage, the onus is on him to prove the existence of the custom of his by
satisfying the court that all the essentials just mentioned are present. The court will declare the
custom proved with the consequence that it has the force of law in Lameck Tembo Malema v

6
https://study.com/academy/lesson/code-law-criminal-code-civil-code.html accessed on 7 March 2023 at 13:30
pm
7
Supra note 4 chapter at page 45
8
J Burke Osborns Concise Law Dictionary (6th E.D) , Sweet and Maxwell at chap 4 at page 108
Mitrice Nyondo9 it was held that “ The Appellant was the one seeking a declaratory order that
there was no marriage. Therefore, the burden to prove that there was no marriage was on
him. He ought to have shown the Court that since the marriage was supposedly a customary
one, it should have been solemnized by a particular custom. He ought to have brought
evidence of the particular custom and shown the Court that by such a custom, the
requirements for marriage are as follows. He failed to do so. The Respondent did not bear the
burden to prove anything”.

(b) Reasonableness
The requisite of reasonableness is very important and is always carefully scrutinized by the
court. Custom cannot be reasonable if it contra bonos mores, injurious or oppressive nor may
custom be contrary to the express provisions of the Statute. In The People v Chitambala10 it was
held by Justice Foster stated that “ I cannot accept that there is anything that I can consider in
the suggestion that African culture knows not bigamy nor do I accept that only better-
informed citizens know of the Marriage Ordinance. In any event, one would expect that
accused would rate himself among them. The fact that the accused went into the second form
of marriage openly and not in secret is abundantly clear and I regard it not as a mitigating
factor but as a blatant defiance of the law of the land.”

(c) Uniformity of observance

The uniform meant that the custom must have invariably complied with the public or buy the
class of persons to whom it applies and that they realized clearly that obedience to the custom
was obligatory and not merely optional, permitting them to obey or not as they wished11

2.4 ISLAMIC LEGAL SYSTEM

Islamic world conceives of the sharia as having sprung up from four principal roots, which are
The Quran, The tradition of Sunna the prophet, Lima or Consensus of scholars, and , Qiyas or
analogy12.

The Islamic system courts have held themselves bound to accept the inferences drawn from the
Quran and the traditions in the standard medieval textbooks in preference to what might appear
to judges as a more correct inference.

(a)Quran
The Quran is the foremost source of Islamic law and it was revealed by God to the prophets
through Wahi Jail. The Quran is the real foundation on which the whole structure of Islam rests.
It is the main source of Islam laws and its five hundred texts constitute the whole range of the
Islam sources of Sharia.

(b) Traditions of the prophets

9
(Appeal 64 of 2014, SCZ 8 41 of 2014) [2017] ZMSC 256 (28 March 2017);
10
(1969) ZR 142 (HC)
11
J.T.R Gibson Willes Principles of South African Law (6 th E.D) Juta and Co , Johannesburg at 9-10 (1970)
12
Supra note 4 at page 38
The practice or paths of the prophet himself are the clearest sources of information on the laws of
God and they are compared in similarity with the recorded common law in the decisions of the
yearbooks and reports of the early history of English law. The sunna or tradition of the prophets
are the second source of the Islamic legal system.

(c) Ljma or Consensus of opinion

This entails that opinion of the scholars is next in importance to the Quran and sunna or
traditions, it is said that a person who does not believe in it is a sinner. The rationale for this
doctrine is that as laws are needed for the benefit of the community, the divine legislator has
delegated his power to lay down laws by the resolution of those men in the community who are
competent on that behalf that is the mujtahids or jurists

(d) Qiyas or Analogy

Qiyas means measuring or comparing. In the language of the law, it is signified as the process of
deduction by which the law of a text is applied to cases which though not covered by the
language, are governed by the reason of the text using interpretation, a text is applied to cases
covered by its language which by Qiyas. The law of the text is extended to cases not covered by
its terms in the beginning the term was formally equated with Ijtihad but over time, their
meaning differed.

2.5 CONCLUSION
The above paragraphs illustrated the various legal systems in the world and how they are
practiced about their respective legal system.

QUESTION C

1.0 INTRODUCTION
Zambia operates a dual legal system, that comprises the customary law of the indigenous people
of Zambia and received English law inherited from the British by colonization. 13 The customary
law of Zambia comprises the indigenous people’s traditions and customs received by oral
transmissions from their ancestors. Many of the indigenous ethnic groups were kingdoms that
existed separately and independently in the pre-colonial era the distinction in their customary law
is still evident but there is an apparent trend of copying from each other 14. Before the arrival of
the colonialist in Zambia, the laws that applied to the territory were indigenous customary laws.
Colonization was merely a super-imposition of imported laws, legal systems as well as concepts
of Justice on an already existing and firmly established legal system 15. The essay will discuss the
differences between African customary law and English Common law. Firstly, it will debate
African customary law and later English Law.

2.0 AFRICAN CUSTOMARY LAW

13
Women and Law in Southern Africa- Zambia the challenging family in Zambia ,Lusaka page 98
14
http://dspace.unza.zm/bitstream/handle/123456789/2154/kalela00001.PDF?sequence=1&isAllowed=y accessed
on 8 March 2023 at 10:10 am
15
A.N Allot ,The Future of African Law ( London Butterworth,1960) p 123
Customary law regulates the largest section of the Zambian Population, however, because it is
not written down and there is no Statute to regulate there is a lot of consistency in the way that
disputes arise from different ethnic tribes involved in that custom and practice. In addition,
customs and practices that are bad are given effect provided in the opinion of the Judge sitting
without assessors, application of that particular custom or practice is not repugnant to natural
justice, equity, good conscience,e or any written law. In Kaniki v Jairo,s16 the court stated that a
“Learned Magistrate could have come up to the conclusion that the compulsory observance of
the Akamutwe custom and its actual enforcement was contrary to the natural justice even
though its voluntary observance might not be”

Customary law is proved by strong evidence from assessors. Assessors are provided for under
section 61(1) of the Local Court Act17 Any local court, or any other court before which a case
from a local court has been ordered to be tried or retried, or which has before it for revision a
case from a local court, or to which an appeal has been made from a local court, or any
authorized officer in the exercise of his powers under section fifty-four, may, in dealing with any
such matters, require the assistance of assessors and make such use of such assessors as advisers
on matters of African customary law as may be necessary. An assessor is an ordinary person
residing in the area of the Court, who is called upon to aid the Court in a case 18. In Mwiya v
Mwiya19 The learned judge stated that the assessors were unanimous that there is no such Lozi
custom and he found no basis to hold a contrary view.

Customary law must be of universal application in a given community or society. The custom
that is practiced among the Lozi custom community cannot be the same as that of the Ushi
custom In Mwiya v.Mwiya20, the High Court held that under Lozi custom, a husband is not
compelled to share the matrimonial property with his wife on divorce. The court further held that
there is no Lozi custom, which would compel a man to support for life a woman he has divorced.
However, some customs and practices differ in Chibwe v.Chibwe21, where the Supreme Court
held that the appellant was entitled to a share of the matrimonial property which decision was
supported by the advice of the assessors who advised the Supreme Court that under the Ushi
custom a, woman is entitled to a share of the matrimonial property upon divorce.

3.0 ENGLISH COMMON LAW

Common law is the legal tradition that evolved in England from 11 tthe h century onwards. It is
defined as that part of the law of England formulated, developed, and administered by common
law courts, based originally on the common customs of the country and unwritten.

16
(1977) ZR 67
17
The Local Court Act Chapter 29 of the Laws of Zambia
18
https://www.grin.com/document/1164803#:~:text=apply%20in%20Tanzania.-,2.1%20MEANING%20OF
%20ASSESSORS,aid%20Court%20in%20a%20case. Accessed on 8 March 2023 at 11:44 am
19
(1977) ZR 113
20
Supra Note 19
21
(1978) ZR 45
Common law is concerned to determine legal disputes according to their individual
circumstances and all relevant Judge-made case law. This simply means that common law is
based on stare decisis the legal rule, ideal, or standard that is based on the past decisions of other
judges in past cases, instead of laws made by an elected, legislative body. For example, decisions
of the highest court are binding to all inferior courts and the decision of the highest court can
generally only be overturned by that same court or through legislation;

Common law applies to all legal persons including the state and there is no division between
public and private. For example, if someone commits murder, the prescribed law under the Penal
Code will be enforced on the accused for committing the offense.

Common law has equity, which is there to defect and mitigate the harshness of common law. It
can be used for all classes of people. The law is very technical in common law and if there is an
error in the formalities the person making the claim would lose the case. In this case, equity
rewards the claimants better. The only remedy that common law could give was ‘damages’ – that
is an order that the defendant pays a sum of money to the claimant by way of compensation. The
main equitable remedies are injunctions, specific performance, rescission, and rectification.
Equity is not a complete system of law; it merely fills the gaps of common law and softens the
strict rules of common law22.

Common law is efficient as there is already a basis on which the judgment will be passed, a basic
framework so to say, the judicial process becomes so much faster. There is certain efficiency in
the process as compared to what the procedure would be like in comparison with a system that
did not follow the precedent-based system. In addition, these decisions are based on a precedent
and so have a stronger basis.

4.0 CONCLUSION
The above question has discussed the difference between African Customary law and English
common law. It has also been discussed the procedure and applicability of each law.

22
https://www.lawteacher.net/free-law-essays/administrative-law/what-is-common-law-administrative-law-
essay.php accessed on 8 March 2023 at 14:10 pm
BIBLIOGRAPHY

The Subordinates Court Act Cap 28 of the Laws of Zambia: Subsidiary Legislation

The Local Court Act Cap 29 of the Laws of Zambia

New Plastic Industries v Commissioner of Lands [2001] SCZ No 1

Chongesha v Securior Zambia Limited (Appeal 102 of 2005)(2004)ZMSC58 (23 June 2014)

The People v Chitamba (1969) ZR 142 (HC)

Kaniki v Jairos (1977) ZR 67

Mwiya v Mwiya (1977) ZR 113

Chibwe v Chibwe (1978) ZR 45

Lameck Tembo Malema v Mitrice Nyondo (Appeal 64 of 2014, SCZ 8 41 of 2014) [2017]
ZMSC 256 (28 March 2017);

Mulela Magret Manulula , Legal Process : Zambia Cases Legislation and Commentaries ,
Lusaka: UNZA ,press 2004.
A.N Allot, The Future of African Law ( London Butterworth,1960)

J.T.R Gibson Willes Principles of South African Law (6th E.D) Juta and Co, Johannesburg at 9-
10 (1970)
Women and Law in Southern Africa- Zambia the challenging family in Zambia,201, Lusaka
J Burke Osborns Concise Law Dictionary (6th E.D), Sweet and Maxwell (1976)

https://www.lawteacher.net/free-law-essays/administrative-law/what-is-common-law-
administrative-law-essay.php accessed on 8 March 2023 at 14:2:10
pmttps://www.grin.com/document/1164803#:~:text=apply%20in
%20Tanzania.-,2.1%20MEANING%20OF%20ASSESSORS,aid%20Court%20in%20a%20case.
Accessed on 8 March 2023 at 11:44 am

http://dspace.unza.zm/bitstream/handle/123456789/2154/kalela00001.PDF?
sequence=1&isAllowed=y accessed on 8 March 2023 at 10:10 am

https://www.akdlawyers.com/what-is-the-legal-system/#:~:text=The%20legal%20system
%20includes%20rules,in%20a%20variety%20of%20ways. Accessed on 7 March 2023 at 10:06
am

https://study.com/academy/lesson/code-law-criminal-code-civil-code.html accessed on 7 March

2023 at 1:30 pm