ZAMBIA Law and Practice Contributed by: Mweshi Banda-Mutuna, Musenge Leah Nkonde and Lumbanya Judah Mulenga, Mweshi Banda & Associates Legal Practitioners
8.5 Expert Evidence Expert evidence is permitted in Zambia pursuant to Order XIX Rule 2 (2)(d) of SI 58 and Order 38 of the Supreme Court Practice, 1999 Edition. Experts are appointed by the parties jointly on agreement or by the party seeking to rely on expert evidence with leave of the court. Duties of Experts Although there are no explicit duties of experts pro- vided for under the High Court Rules and the Supreme Court Practice, 1999 Edition, experts have the same duties as other ordinary witnesses generally, which includes providing evidence of fact based on their expertise. Additionally, expert evidence is meant to aid the court in reaching a just decision; as such, experts have the duty to be impartial. A judgment obtained from a court in a foreign country can be recognised and enforced in Zambia in the fol- lowing ways: • applying for registration of that judgment in the High Court of Zambia under the Foreign Judg- ments Act, enacted during colonial times, if that judgment was obtained from a court in a country that was is part of British dominions by ex parte summons accompanied by an affidavit exhibiting a certified, sealed and translated copy of the judg- ment issued by the original court; and • judgments obtained from countries other than British dominions can be recognised and enforced under the common law by way of the applicant (the successful party in the foreign court) commenc- ing an action in the High Court, with the cause of action being based on the foreign judgment. 9.2 Enforcement of Arbitral Awards 9. Enforcement 9.1 Enforcement of Judgments According to Section 18 of the Arbitration Act, appli- cations for registration or recognition of domestic and foreign arbitral awards can be made to the High Court. This is done by way of ex parte originating summons supported by an affidavit to which the authenticated
• where the party that the right to confidentiality is intended to protect waives that right. 8.4 Witness Evidence In civil proceedings commenced in the High Court by writ of summons, witness evidence is contained in a witness statement, which is filed ahead of trial pursu- ant to Order XIX Rule 2 (2)(c) of SI 58. The witness statement contains the facts relevant to the claim, which should refer to documents contained in the bundle of documents filed by the party ahead of trial. During trial and once the witness statement is duly admitted into evidence following confirmation by the witness of their preparation and signing thereof, the opposing party – by themselves or their lawyer – can cross-examine the witness if they wish to. In other matters commenced by originating summons, notice of motion or petition, a witness’s evidence is contained in an affidavit filed together with the origi- nating process. The opposing party is allowed to file an affidavit in opposition rebutting any issues and pro- viding evidence in support of their defence. Unless, on the application of a party, an order is made by the court allowing for presentation of oral evidence at trial despite filing of affidavits, witnesses are not cross-examined as the respective affidavits are taken to have sufficiently tested the evidence. In the Subordinate Court, unless evidence is con- tained in an affidavit (in the case of a debt or a liq- uidated claim or an action commenced by notice of motion, originating summons or petition), a witness’s evidence is orally adduced during trial. Thereafter, the opposing party is allowed to cross-examine the witness. Where evidence is contained in an affida- vit, the opposing party is allowed to file an affidavit in opposition, rebutting any allegations made by the other party and adducing evidence therein to support their defence. The procedure in the Subordinate Court is, however, more flexible than in the High Court as a witness that has filed an affidavit can still present oral evidence and be cross-examined by the other party. The Use of Witness Depositions Although depositions are provided for under Order V Rule 26 of the High Court Rules, they are generally not resorted to in court proceedings in Zambia.
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