ZAMBIA Law and Practice Contributed by: Mutembo Nchito, Mable Chakoleka, Chisuwo Hamwela and Dhozinta Mphuka, Nchito & Nchito Advocates
• Declaratory judgment – a court declaration con- firming the legal rights or obligations of parties, without necessarily ordering action or payment. • Rescission or cancellation of a contract induced by fraud, misrepresentation, mistake, or undue influence, restoring parties to their pre-contract position. • Rectification – corrects errors in a written docu- ment to reflect the true intention of the parties. • Account of profits – orders a wrongdoer to sur- render profits gained through a breach of duty (eg, fiduciary duty). • Costs – a successful litigant is generally entitled to an award of costs, compensating for legal expens- es incurred in the litigation. 9.2 Rules Regarding Damages The rules on damages (and on which type can be awarded, as outlined in 9.1 Awards Available to the Successful Litigant ) depend on the circumstances of the case, and are determined by judicial precedent (case law) and English law principles. There are no standard rules limiting the maximum damages a suc- cessful party can be awarded. 9.3 Pre-Judgment and Post-Judgment Interest A successful party may be entitled to pre- and post- judgment interest. The underlying consideration on the payment of interest is that the successful party has been wrongfully or unlawfully kept out of the use of his/her money, and ought to be compensated for that period. While pre-judgment interest can be determined by contract, post-judgment interest is prescribed under the Judgments Act, Chapter 81 of the laws of Zambia, and cannot exceed the current lending rate, as prescribed by the Bank of Zambia. 9.4 Enforcement Mechanisms of a Domestic Judgment There are a number of mechanisms available for the enforcement of a domestic judgment in Zambia, which include the following. • Writ of fieri facias – authorises seizure and sale of the debtor’s movable property.
• Garnishee proceedings – used to attach funds owed to the debtor by third parties (eg, bank accounts). • Charging order – places a charge on the debtor’s land or securities to secure payment. • Writ of possession – enforces judgments for recov- ery of land or premises. • Committal for contempt – punishes non-compli- ance with a court order by way of imprisonment. • Writ of delivery – orders the return of specific mov- able property. • Appointment of a receiver – allows a receiver to collect or manage the debtor’s assets, particularly when the debtor is a company that has failed to pay back a loan. • Bankruptcy or insolvency proceedings – used when the debtor cannot pay, leading to distribution of assets. 9.5 Enforcement of a Judgment From a Foreign Country The enforcement of any foreign judgments or orders in Zambia is governed by the provisions of the Foreign Judgments (Reciprocal Enforcement) Act, Chapter 76 of the laws of Zambia. This only applies to countries that have signed reciprocal enforcement agreements with Zambia, which permit the registration of Zambian judgments in those countries. For countries without reciprocal enforcement treaties/ agreements, a judgment can only be enforced by way of commencing a fresh action in the Zambian courts.
10. Appeal 10.1 Levels of Appeal or Review to a Litigation
The following appellate courts are available in Zambia. • The Subordinate Court (where decisions from the local courts are appealed to). • The High Court (where the decision emanates from the Magistrates’ Court). The High Court has appel- late jurisdiction in civil and criminal matters from the Magistrates’ Court. • The Court of Appeal (where the decision emanates from the High Court). The Court of Appeal has
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