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INTORDUCTION TO THE MODULE

Law is the system of rules which regulate society. Lawyers are trained to analyse, interpret and apply the law. Law has been described by some prominent jurists as the cement upon which society is built; meaning the law cannot be dispensed with. This simply means that the law regulates every aspect of life, including, business and trade , criminal activity, family disputes, property development, international relations, governance, political and public affairs. This course combines the discipline of law with other disciplines so as to enlighten students on the significance of law regardless of their field of study. It is hoped that at the end of the study of the module contents the students will be able to grasp the basic principles of law and apply them in practice.

The following are the module objectives

To have an understanding of what law is and its relevance to society

To be able to explain the components of the Zambian Legal System

To have a clear understanding of human rights and how they are applied in Zambia

To demonstrate knowledge on the basic principles of the law of contract

To have the ability to explain how liability arises in tort; and being able to explain the main defenses and remedies in tort

To be able to explain in outline the principles of land law in Zambia

To understand the theory of law and why the legal system is organized in the manner it is currently.

To have an idea of Zambia’s political system and the relationship between law and politics.

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CHAPTER ONE

THE ZAMBIAN LEGAL SYSTEM

Introduction

This Chapter gives an introduction to the study of law by describing the Zambian legal system. A legal system simply refers to the manner in which the law in particular country is administered; in this case it will be done with particular reference to Zambia. This includes the sources of Law in Zambia; the court system of Zambia, classification of the law; concepts of constitutionalism such as the separation of powers; the rule of law and checks and balances. This is a study that introduces a student to the system of governance of a country and how it impacts on the stability of a particular country.

Learning Objectives

By the end of this Chapter, a student must be able to:

i. Define law and explain its importance to societyii. Explain the main sources of law in Zambiaiii. Describe the court system in Zambia and the jurisdiction of

the courtsiv. Classify the lawv. State the main rules of statutory interpretationvi. Discuss the characteristics of democracy (rule of law; separation

of powers; protection of human rights, good electoral system, legal system; judicial review, system of checks and balances and enforcement mechanisms).

vii. Display an understanding of the doctrine of separation of powers in detail by clearly explaining the organs of government; their composition; functions and powers under the Zambian Constitution.

viii. Explain the meanings of judicial review and the rule of law.

Definition of Law

Obviously, law can never be denied with equal obviousness, however, it should be said that the adherents of the legal institution must

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never give up the struggle to define law because. Law may be defined as rules that are definite, detailed provisions for definite detailed states.

The Oxford English Dictionary defines law as:

“the body of rules, whether formally enacted or customary, which a particular State or community recognises as governing the action of its subjects or its members and which it may enforce by imposing penalties.”

The Purpose of Law

Law has several functions to perform in society today, which include:

Promotion of regularity and certainty Law as a mechanism of social control It provides for adjudication of controversy Promotion of order The law is society’s source of authority Law is a medium of social integration Law promotes fairness Law is an instrument for serving the needs of society Law promotes responsibility Law is an instrument of social change

Sources of Zambian Law

Some of the sources of Zambian law include the following;

1. The Constitution of Zambia, CAP 1 of the Laws of Zambia2. Legislation,3. Delegated Legislation,4. Common Law and Equity and5. Case law

The Constitution

What is a Constitution?

Without any aid to the definition of the term constitution, a constitution can be given many different definitions. It can be termed a document that contains the most fundamental laws of a country. A document that

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establishes the three institutions of government. A document that regulates the relationship of the three organs of government and the relationship of private citizens and between the government and the governed.

All the above definitions of the term constitution have an element of truth as to what a constitution is. However, the Oxford Dictionary of Law has defined a constitution in the following way:

“the rules and practices that determine the composition and functions of the organs of central and local government in a state and regulate the relationship between the individual and the state”.

Why have a Constitution

As we can infer from the definitions above, a constitution is an important document or pieces of ‘rules’ and ‘practices’ in a country. A constitution operates as a guide in the process of governing a country.

A constitution therefore is paramount in any state. It is the constitution as already indicated above, which provides for the existence of the three arms of government and equally will stipulate how these three arms of government are to operate so as to ensure the smooth running of a country.

A Brief Background of the Constitution making process in Zambia

Throughout the history of constitutional reform in Zambia, there has often been tension between the need to encourage consensus and popular involvement on the one hand and the need to ensure that government’s authority is not undermined on the other hand. Over the last several years since Mung’omba Constitutional Review Commission reported in 2005, mistrust between the government citizens over the ground rules of constitution making has led to stalemate and political instability. The controversies over the constitution making process, particularly the mode of adoption the constitution have continued over the past four decades.

Importance of the Constitution

A Constitution is a document which is used to govern people, and by which they (the people) have agreed to be ruled. It determines the fundamental principles of government; it gives power to government and the limit of that power. A Constitution is the fundamental law of a

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country. For example, in Zambia it is the supreme law of the land. The constitution is the fundamental law of the land. It consists of laws which govern a state. It is important to point out that every state or nation has defined objectives established to accomplish those objectives, needs a constitution to define powers, rights and duties of the state or nation. The laws also regulate the internal working of a nation or state which also makes provisions for the manner in which the nation or state relates to outside bodies. It can safely be said that a constitution looks both to internal and external regulation of the body which it relates. It sets out a form of government the State-Society relationship and the limits of government.

The Constitution Making Process

The development of a constitution is not about individuals, nor is it about political parties. It is a matter for the government in power alone to determine. It is a national issue that should transcend all other interests and involve all stakeholders at every level of the process. Zambia should not miss this golden opportunity to develop a truly national and democratic constitution.

If Zambia is to respond successfully to the needs of its people and realize its dreams of rapid economic development and political stability, it will have to apply careful thought to the proper organization of political, economic, and administrative institutions to ensure the proper governance of the nation. The aim should be to achieve a constitutional order that is legitimate, credible, and enduring, and which is structurally accessible to the people, without compromising the integrity and effectiveness of the process of governance.

Modes of adopting Constitutions

Constituent Assembly

A Constituent Assembly is a body of persons that has been specifically elected or selected to create a new constitution. The mandate of the members only extends to the making of a new constitution. In terms of composition, it is larger, more inclusive and broad based body. It is inclusive of all stakeholders. The members are usually selected to represent different interest groups such as the youth, handicapped persons, professional associations, and Non-Governmental Organizations. Many of the democratic countries have used a Constituent Assembly. The American constitution, which is the oldest written

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constitution, was adopted by a Constituent Assembly which met for years in parliament.

The Constituent Assembly works independently and is free from the control of any person or group of persons. It aims at advancing the national interests than the President and the National Assembly. A Constituent Assembly is conceived as a sovereign body which has complete authority to deliberate upon and adopt the Constitution. It does not depend on the outside bodies to authorize its actions, either before or after its work is concluded. The President’s signature to the adopted constitution is not regarded as assent to complete the process of adoption, because this will be monopoly of the Constituent Assembly. The signature will be consider as a mere authentication or certification that the document he signs is that which in fact the Constituent Assembly has adopted. The certification can even be made by the Chairperson of the Constituent Assembly, rather than the Republican President.

Adoption of the constitution by a Constituent Assembly will impart concrete meaning to the idea of the constitution as being derived from the people, which notion transcends the realms of legal fiction into a political reality. Meaning that the people will be able to identify themselves with the Constitution because the use of a Constituent Assembly ensures that all people participate by making submissions to the assembly which are considered during the process of adoption. A Constitution is derived from the people, since it is the document that governs the people; and by which they (the people) agree to be governed.

Referendum

The other mode that is used to adopt a constitution is through a referendum. In this way, a panel of experts or a Constitutional Review Commission formulates a draft constitution, which is then submitted to the people then put it to a vote by either approving the draft with a “Yes” vote or rejecting it with a “No” vote.

Adopting the constitution through a referendum may prove costly and unpopular as, some of the submissions of the experts may not be wholly accepted by the people and hence would be rejected which would mean sending it back to the experts for further alterations to be made before it can be put to another vote.

The submissions of the experts may not necessarily reflect the aspirations of the people on whose behalf the constitution is made and in instances

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like this, a constitution may not really stand the test of time as a huge segment of society may not really be pleased with the contents of the constitution.

Constitutional Convention

A constitutional convention is not very different from a constituent assembly. As already pointed out when making reference to the coming up of the American constitution, a convention was called where representatives of different States converged for purposes of drafting and adopting the articles of the constitution. The distinction between the two however may lie in the fact that with a constituent assembly, it is the people themselves that determine who from their constituencies would represent them at the assembly whereas; with a convention it could leaders within the particular localities to decide who may represent the people at the convention. With some level of independence in the composition of the convention, it equally is an ideal mode of adopting a constitution and may have the same adverse effects as the ones already identified in the two above.

Parliament

If the issues were with costs, this would be the best in terms of cost saving measures to use in adopting a constitution. Equally if the Zambian National Assembly did not compose of members with so much political party patronage but representing their constituents this mode would be the best to use in adopting a constitution. However, in Zambia Parliament cannot represent as a democratic and representative mode of adopting a constitution. The current 1996 constitution adopted by Parliament is evidence enough of how undesirable it is to adopt a constitution using Parliament in countries with so much political party patronage in the house.

Constitutional Conference

This is the mode where all political players are represented. This mode usually works well in countries emerging from civil strife and wishes to come together and forge ahead with a common goal notwithstanding political differences. It is important in such instances that all political players are gathered together to formulate and adopt a constitution if it is to get the full recognition and loyalty from all parties that may have previously been engaged in warring, then all have to congregate, submit and play a part in the adoption of the constitution so it can be respected by all as it would be the result of everyone.

An analysis of the Modes of Adoption of Constitutions

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It can be concluded from the description of the various modes of adopting a constitution that, a constituent assembly is a good mode of adopting because it involves a wide participation. All interested groups and stakeholders are represented such as NGOs; youth organisations; political parties; and citizens. It is most likely that the product of this process will be a constitution that is accepted by the people because by nature, it is framed based on the inputs from the public. This process can be said to be one of the most efficient modes of adopting a constitutions for example, there are classic examples of the American and Namibian constitutions which were adopted by a Constituent Assembly and are described as successful, with America having the oldest constitution in the world. On the other hand, adopting a constitution by a referendum means that a review commission drafts a constitution that is voted for or against by the citizens. This can be contrasted with a constituent assembly because it does not reflect the true aspirations of the people. This process is expensive as submissions may need to be taken back to the experts where the vote is no; there is also a likelihood that it can biased. A constitutional conference involves all political players who meet together to formulate and adopt a constitution. This process supports the notion that the final constitution will command loyalty among its subjects as they play a part in the enactment of the constitution. This mode can be consider as being more balanced than the use of a referendum as the stakeholders formulate the constitution themselves and are not subjected to an already drafted document which they have to vote yes or no to.

From all the processes described, a constituent assembly appears to be the most efficient way of adopting a constitution because of its wide participation and ‘a people driven constitution goal.’

Supremacy of the Zambian Constitution

The Zambian constitution is supreme first, because it gives unlimited power to the governing body in the republic to legislate that is, apart from the constitution itself; there is no other law in the republic that has to be taken into consideration as being supreme so as to ensure the constitution conforms to that other law. Secondly, the constitution is supreme because any law that is to be enacted by Parliament has to ensure it conforms to the provisions of the constitution failure to which, the law enacted by Parliament would be declared void to the extent of the inconsistency.

The Legislative Process

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The governance of a country depends on having a good constitution and supplementary to that, Statutes that are consistent with the provisions of that constitution. Unlike the constitution which is an emanation of the people through the various submissions, statutes are enacted in parliament in the interest of the general population in whose interest Members of Parliament are supposed to work. This unit therefore looks at the process of legislation in the National Assembly.

Primary Legislation

Classification of Bills

The majority of Bills will be those put forward by the government to implement its policies. Bills fall into four categories: Public Bills, Private Bills, Hybrid Bills and Money Bills.

A Public Bill is one, which has general application to all members of society, for example, Road Traffic Bill, Environmental Protection Bill or Housing Bill. A Private Bill on the other hand, is on which affects only an individual or bodies in society, as local authorities.

A Hybrid Bill is also one of general application, that is to say a Public Bill, which also affects particular private interests in a manner different from the private interests of other persons or bodies of the same category or class. A classical example of a Hybrid Bill is one regulating the development of the Channel Tunnel from mainland Europe to England, since it affects the private rights of landowners whose land would be compulsorily purchased.

A Money Bill is one, which is certified by the Speaker as such, and is one, which contains nothing other than financial measures.

A Private Members' Bill is one promoted by an individual Member of Parliament, as opposed to the government or, alternatively, a matter which the government has been unable to fit into its legislative program but will subsequently adopt and provide time - and support - for the passage of the Bill. Most often such Bills involve sensitive issues of particular interest to the promoters. Example, the Bill introduced to Parliament by Patriotic Front on the mode of adopting the constitution. Private Members' Bills follow the same legislative process as government Bills, but the time available for their consideration is restricted.

Consolidation Bills represent a re-enactment of legislation in a comprehensive manner and they enable previous legislation - which will generally exist in several statutes - to be repealed. It is important to note that Consolidation Bills do not, for the most part, represent any change in

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the law; rather, they represent the chance 'consolidate' all the law on a particular matter within one statute. Since there is no change being made in the substantive law, parliamentary time devoted to Consolidation Bills is short and it is rare for a Consolidation Bill to be debated more than briefly on the floor of parliament.

The majority of Bills considered by Parliament will be introduced by the government of the day. Most of the Bills therefore, that go before parliament are responses to particular events.

Once the government has decided to implement a particular measure, the aims of government must be translated effectively into language, which will achieve those objectives. That task is entrusted to parliamentary draftsmen or parliamentary counsel who have to ensure that, apart from capturing the intent, vision, policy and aspirations, the particular intended legislation does not contradict the provisions of the constitution of Zambia which is the supreme law of the country.

The Process of Legislation

Article 78 of the Republican constitution provides for the legislative process in Zambia. All legislative powers in Zambia are vested in Parliament which consists of the National Assembly and the President. The president does not participate in the deliberations in the National Assembly and his role as a component of parliament mainly comes in at stage of assent to Bills.

First reading-A Bill will appear on the Order Paper of the relevant day. It is presented in 'dummy form' and deemed to be read a 'first time'. Alternatively, a Bill may be presented on order of the House. Following the purely formal introduction into Parliament, a date will be set for second reading and the Bill is supposed to be printed and published.

Second Reading-It is at the second reading that a Bill will receive the first in depth scrutiny. The scrutiny occurs in the form of a debate, generally on the floor of the House, and is confined to matters of principle rather than detail. It is at second reading stage that the Minister in charge of the Bill must explain and defend the contents of the Bill. The Opposition's task is to probe and question and set out reasons for opposing the Bill.

Once the Bill has successfully completed the second reading stage, it 'stands committed' to a standing committee, unless, exceptionally, the House orders otherwise.

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Committee Stage-Standing committees are designed to scrutinise Bills in detail. in fact, they are not. The committee will be established for the purpose of examining a particular Bill and will then stand down. The function of the standing committee is to examine the Bill clause by clause. The Minister in charge of the Bill has the task of steering it successfully through committee stage. Members of standing committee may propose amendments. Once the clauses of the Bill have been considered, the committee moves to consider any proposed new clauses.

Report Stage-Once the Bill has been considered in standing committee, the Bill is reported back to the House as a whole. If amendments have been in the committee, the Bill will be reprinted. Further amendments may be introduced at this stage, but the speaker will be careful to void repetition of the debate in standing committee, so any proposed amendments previously considered will be rejected.

Third Reading-The third reading represents the last chance for Parliament to examine a Bill before it received the presidential assent or, in the case of the United Kingdom, before it passes to the House of Lords. At this stage, the Bill cannot be amended other than to correct small mistakes such as grammatical or printing errors.

Statutory InterpretationWhen Parliament passes law, they are expected to be interpreted. It is common knowledge that language is as dynamic as there are a number of situations. The same word in a sentence if used in different contexts may carry a totally different meaning.

Presumptions of interpretationWhen judges are faced with a statute to interpret, they are obliged to assume certain things. Some of the presumptions of interpretation include:

1. Presumptions of statutes being in line with common law2. Presumptions of mens rea as requirement in criminal cases3. Presumptions of the law applying prospectively and not

retrospectively

Rules of Language1.Expression unius est exclusion alterius rule, is on the illustration of the principle that a word or phrase be interpreted in context. It means the express mention of one thing is the exclusion of another, e.g. a provision that imposed a rate on occupants of lands, houses and coal, was held not to apply to mines other than coal mines

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although the expression of ‘land’ would normally cover all kinds of mines.

2. Ejusdem generis ruleWhere words of particular meaning are followed by words of general meaning, the general words are limited to the same kind as the particular words. For example, where a statute states that “whisky, brandy and so on are to attract a V.A.T of 25%, the list is whisky and brandy, while the general word is and so on. The words and so on are to be interpreted in line with the list. In other words, the judge may interpret and so on as including vodka, but not coca-cola. In Powell v Kempton Racecourse[1889],the general words ‘other place’ were held to mean ‘other indoor place’ because the list referred to a house, office, room or other place.’

3. Noscitur a sociis ruleThis rule states that words are normally interpreted in the context of word and simply not as individual words. For example, a person was indicted with wounding a female by biting off the end of her nose. Section 12 of the relevant act provide that if a person shall unlawfully and maliciously, stab, cut or wound and person with intent…..to maim, disfigure, or disable such person, the offender is guilty of a felony.

The judge directed the jury that it was the intention of the legislature, according to the words of the statute, that the wounding should be inflicted with an instrument, and not by the hands or teeth.

Rules of InterpretationThere are four methods of interpreting statutes:

The Literal RuleThe rule states that if a statute is clear and unambiguous, words in the statute ought to be given their natural and ordinary meaning. In Whitley v Chappell [1868], the defendant was charged under a section which made it an offence to impersonate ‘any person entitled to vote.’ The defendant had voted using a dead person’s name. Held-the court held that the defendant was not guilty since a dead

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person is not, in the literal meaning of the word, ‘entitled to vote’. Surely, this is an absurdity.

The Golden RuleThe courts will use the ‘golden rule’ where using the literal rule will lead to an absurdity. The golden rule give s effect to the clear words used by Parliament, but will stop short of arriving at an absurdity. In Re Sigsworth [1935], a son had murder his mother. The murdered mother had not made a will but as per rules Administration of Justice Act 1925, her next of kin (her son) would inherit. Held-it was held that the literal rule should apply and the golden rule was used to prevent repugnant a situation.

The Mischief RuleThe mischief rule is applied to what parliament meant. It derives to an old rule going back to Hayden’s Case [1584].In Smith v Hughes[1960], prostitutes charged with soliciting on the streets contrary to Streets Offences Act 1958. Their defence was that they were inside a building and tapping on a window to attract men (thus not on the streets). Held-the court applied the mischief rule and found them guilty because the SOA Act 1958 was designed to prevent prostitution. This case enunciated four points which courts should consider:

1. What was the common law before the Act?2. What was the mischief and defect which the common law did not

provide?3. What was the remedy Parliament was trying to provide?4. What was the true reason of the remedy?

It was stated that the judges should then suppress the mischief and apply the remedy.

Purposive ApproachThe purposive approach looks at the purpose behind the legislation so as to give effect to that purpose. In the case of Pepper v Hart [1993] the courts in England were allowed to look at the Hansard parliamentary debate records to get the meaning of a statute which was seemingly ambiguous. In R v Registrar General [1990], Smith wanted a certificate in order to find his mother. The problem is that he was a dangerous murder in Broad moor Mental Hospital. Literally with a clear expressed history of hatred towards his mother. Interpreting the law literally meant that he had a right to get his birth certificate and

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therefore, able to locate his mother. Held-using the purposive approach, it was held that ‘Parliament could never have intended to promote the possibility of such serious crime.’

Delegated Legislation

The process of law making would be incomplete without a consideration of delegated, or subordinate, legislation. Delegated legislation may be made by:

(a) Ministers, in the form of rules and regulations which supplement the provisions of an Act of Parliament;

(b) Local authorities, in the form of bylaws to regulate their locality according to particular localised needs;

(c) Public bodies, in the form of rules and regulations. Such bodies include the Zambia Wildlife Authority etc.

(d) Government departments, in the form of codes of practice, circulars and guidance. These do not contain legal rules, but have a substantive effect on the manner in which the legal rules operate;

(e) National Assembly, in the form of Resolutions of the House. Under English law, the Provisional Collection of Taxes Act 1968 makes possible the lawful imposition and collection of taxation between the Budget speech and the enactment of the Financial Bill in July/August. Whereas normal Resolutions of Parliament do not have the force of law, Resolutions enabling the imposition and collections of taxation - being authorised by statute - have legal effect.

(f) Professional relegations-these are rules governing particular occupations and may be given the force of law under provisions delegating legislative authority to certain professional bodies. An example is the power given to LAZ, Law Association of Zambia act CAP 31 of the laws of Zambia to control the conduct of lawyers.

Advantages of Delegated Legislation It is efficiency, which is the principle justification for the delegation

of law making power. Another advantage of delegated power lies in the need to

supplement or amend the primary rules in light of new developments.

Delegated legislation enables the fine-tuning of the primary rules to take place, without encumbering Parliament as a whole.

Further, it may be that the government is clear as to the broad policy to be pursued under an Act, and as to the primary legal rules

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necessary to achieve a particular goal. There may be less certainty as to technical, detailed rules necessary: the delegation of law making power enables such rules to be worked out, often in consultation with specialist interest groups outside Parliament.

Parliamentary time is also saved. When law making power is vested on another body, parliamentarians are given enough time to concentrate e on other issues, as these people are also politicians.

Delegated legislation is also quicker than the ordinary law making process.

Disadvantages of Delegated Legislation

The justifications for subordinate legislation can hold good only if the powers granted are sufficiently clear and precise as to be adjudicated upon by the courts by way of judicial review and if parliament scrutiny accorded to it is adequate. If the powers to make laws are not controlled, this may be a danger to the law making process.

Another disadvantage of delegated legislation is that the law will become too bulky if too many laws are to be passed by delegated legislation.

The law making power may be abused by bodies authorized to pas subsidiary legislation.

The giving of power to inferior bodies to make laws is more or less like taking away the law-making power from parliament which is supposed to be the supreme law making body. It is also a violation of the doctrine of separation of powers as most bodies that make subsidiary legislation belong to the executive and not the legislature.

Delegated legislation may also be costly on the part of the government as many people are involved and this requires sufficient financial resources.

Parliamentary Scrutiny of Delegated Legislation

The method of adopting delegated legislation depends on what is stipulated in the particular enabling Act. First, the parent Act may provide that the instrument be laid before Parliament but that no parliament action is needed. Secondly, the parent Act may provide that the instrument is subject to the 'negative resolution procedure'.

The Presidential Assent

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Receiving the Presidential assent represents the final stage in the enactment of legislation. The presidential assent is a prerogative act. Once assent has been given, the Speaker of the House notifies it to Parliament. It has to however be noted that legislation does not automatically become effective after assent, the statute will stipulate a date on which it will become effective and whether it will be of retrospective nature.

Case Law and Judicial Precedent

The History of Judicial Precedent

The doctrine of binding precedent did not become firmly established until the second half of the 19th century. In the common law courts the former practice was to apply the declaratory theory of common law, i.e. the law was contained in the customs of the land, and judges merely declared what it was. Thus although judges regarded precedents as persuasive they did not consider them to be binding. In Fisher V Prince (1972), Lord Mansfield said:

“The reason and spirit of cases make law, not the letter particularly precedents”

As time passed judges paid more and more attention to previous decisions and in Mirehouse v Rennel (1833). Barron Parke said that notice mist be taken of precedents. The court could not ‘reject them and abandon all analogy to them.

In the Court of Chancery there was no declaratory theory, the Judges merely tried to do justice in each individual case. This system lacked certainty and criticism was strong. From about 1700 the court began to pay increasing respect to its previous decisions.

The modern doctrine of binding precedent is about 125 years old. Its present form is due to two factors. Firstly in 1865 a Council was established by The Inns of Court and The Society to publish under professional control the decisions of superior courts. Prior to this private reports were published, some were good, others were unreliable, and many cases were not reported at all. Secondly, the Judicature Acts 1873 – 1875 a clear court hierarchy. The doctrine of precedent depends for its operation on the fact that all courts stand in a define relationship to one another.

An Outline of the Doctrine

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Despite the inevitable tendency of judges to create law, binding precedent is based on the view that it is not the function of a judge to make law, but to decide cases in accordance with existing rules. Two requirements must be met if a precedent is to be binding:

(a)It must be a ratio decidendi statement, and(b)The court must have a superior, or in some cases equal status to the

court considering the statement at a later date.

The Ratio Decidendi

(a) Judgments contain:i. Findings of fact, both direct and inferential. An inferential finding

of fact is the deduction drawn by the judge from the direct facts of perceptible facts. For example from the direct facts of the speed of a vehicle, the road and weather conditions, and the length of skid marks, the judge may infer negligence. Negligence is an inferential finding fact. Findings of fact are not binging. Thus even where the direct facts appears to be the same as whose of an earlier case the judge need not draw the same inference as that drawn in the earlier case.

ii. Statements of law: The judge will state the principle of w applicable to the case. Statements of law applied to the legal problems raised by the facts as found upon which the decision is based are known as ‘ratio decidendi’ statements.

Other statements, not based on the facts as found, or which do not provide the basis of the decision, are known as ‘obiter dicta’ statements. For the purpose of precedent the ratio decidendi, which literally means ‘reason for deciding’, is the vital element, which binds future judges.

iii. The decision: From the point of view of the parties this is the vital element since it determines their rights and liabilities in relation to the action, and prevents them from reopening the dispute.

(b) Sometimes it is difficult to ascertain the ratio decidendi of a case. For example:

I. A statement intended by the judge to be the ratio is not accepted by a subsequent court as the ratio; however his other reasons are accepted.

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II. In the High Court or Supreme Court the different members of the court may reach the same decision, but for different members of the court may reach the same decision, but for different reasons.

III. A judge may intend two rations, one of which may be treated by a later judge an obiter dicta statement because it was not essential to the decision.

Persuasive Precedents

These are statements, which a later court will respect, but need not follow. There are several kinds of persuasive precedent:

Obiter Dicta: these are expressions of opinion or illustrations emanating from the Bench during the course of the judgment and have no binding force as the ratio decidendi; are simply statements ‘by the way’ but they do not possess some authority which is not entitled to respect varying with the reputation of the particular Judge.

In Rondel v Worsley (1969)The Court stated an opinion that a barrier might be held liable in negligence when not acting as an advocate, and a solicitor when acting as an advocate might be immune from action. Since the case actually concerned the liability of a barrister when acting as an advocate these opinions were obiter dicta.Overruling and Reversing

(a)Precedents can be overruled either by statute or by a superior court. Judges are usually reluctant to overrule precedents because this reduces the element of certainty in the law.

(b)Overruling must be distinguished from reversing a decision. A decision is reversed when it is altered on appeal. A decision is overruled when a judge in a different case states that the earlier case was wrongly decided.

Distinguishing, Reconciling and Disapproving

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(a)A case is distinguished when the judge states that the material facts are sufficiently different to apply different rules of law.

(b)Cases are reconciled when the judge finds that the material facts of both cases are so familiar that he can apply the same rules of law.

(c) A case is disapproved when a judge, without overruling an earlier case gives his opinion that it was wrongly decided.

Advantages and Disadvantages of Precedent

Advantages

I. Certainty: It provides a degree of uniformity upon which individuals can rely. Uniformity is essential if justice is to be achieved. The advantage of certainty by itself outweighs the several disadvantages of precedent.

II. Development: new rules can be established or old ones adapted to meet new circumstances and the changing needs of society.

III. Detail: No code of law could provide the detail found in English case law.

IV. Practically: The rules are laid down in the course of dealing with cases, and do not attempt to deal with future hypothetical circumstances.

V. Flexibility: A general ratio decidendi may be extended to a variety of factual situations. For example, the ‘neighbour test’ formulated in Dononghue v Stevenson (1932) determines whether a duty not to be negligent is owed to a particular person whatever the circumstances of the case.

Disadvantages

I. Rigidity: Precedent is rigid in the sense that once a rule has been laid down it is binding even if it is thought to be wrong.

II. Danger of illogicality: This arises from the rigidity of the system. Judges who do not follow a particular decision may be tempted to draw very fine distinction in order to avoid following the rule, thus introducing an element artificiality into the law.

III. Bulk and complexity: there is so much law that no-one can learn all of it. Even an experienced lawyer may overlook some important rule in any given case.

IV. Slowness of growth: They system depends on litigation for rules to emerge. As litigation tends to be slow and expensive the body of case law cannot grow quickly enough to meet modern demands.

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V. Isolating the ratio decidendi: where it is difficult to find the ratio decidendi of a case this detracts from element of certainty.

Common Law and Equity

Common law is the body of law derived from judicial decisions, rather than from statues or constitutions. Under the Anglo-Saxon there was no such thing as English law. Communities were small and isolated because travel was dangerous and difficult. The application of justice was done within each local community. There was a court in each shire or province which was dominated by the wealthy. There were few written laws then referred to as King Alfred’s Laws.

Before 1066 AD a period which is vastly significant to English Law is known as the a period before the Norman Conquests the legal system in England was fragmented as local customs varied from area to area. The Norman Conquests were a trigger to the organisation to the English Legal System into a centralised system. The Normans utilised the structure of the courts an d appointed judges. England was divided into circuits which judges followed in the administration of justice. The judges moved from one county to another hearing cases that had accumulated.

By 1154 AD Henry II became the king of England. He was a warrior and managed to unite England. It was during his reign that there was created a unified system of law. The Central royal court provided precedents, and there was also a jury system of passing judgement.

Describing various forms of liability

Civil and Criminal Liability

Criminal law is a branch of law that deals with criminal liability and its punishment. The word criminal comes from the word crime, which means a legal wrong. A criminal therefore, is a person who commits an act that is wrong or contrary to the law. A person is found to be criminally liable when they are found guilty; meaning they had the mental element (mens rea) and the (actus reus) which the act of committing an offence. A person can only be approved to be guilty in a court of law. The person purported to have committed a crime is the accused and the person who is aggrieved is known as the defendant. All criminal cases are carried on in the name of the state in the name of the president representing the people. Minor criminal cases may be heard in the Magistrates’ Courts, appealed to the High

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Court and the highest court of appeal being the Supreme Court. A criminal case will usually be cited as: John Banda v The People.

Civil Law-Civil case are cases which are not criminal and ay involve, contract, tort, employment, law of trusts or property law. They start in the Local courts, Small Claims Courts, the Magistrates’’ Courts or the High Court for complex cases. In civil cases the claimant also known as the plaintiff sues the defendant. If the claimant is successful, then the defendant is liable.

Standard of Proof

The standard or quantum of proof is the degree of probability to which facts must be proved to be true. The standard of proof in criminal matters means the degree of probability to which facts must be proved to be true as no party ca be required to prove facts to a standard of absolute mathematical certainty. The standard of proof in criminal case is proof beyond reasonable doubts. The burden or onus of proof (which is the legal obligation on a party to satisfy the fact finder to a specific standard of proof) in criminal matters is rests on the prosecution. The standard of proof in civil matters is on the balance of probabilities and the burden of proof ret on the party that bring the cause of action.

Public and Private Law

Public law is the law that governs the relationship between states and the relations and the relations between citizens and their state. Constitutional Law and International Law are branches of public law. On the other hand private law is the law that govern the relations between individuals such the law of tort, contract and family law.

Liability in contract and in tort

Both the law of contract and law of tort fall under civil branches of law; meaning that they are not criminal by nature and deal with less serious offences as compared to the offences found under criminal law. Despite them both being civil branches of law; several differences exist between them which include:

Law of Contract Law of Torts1. Liability in contract arises

when a person breaches an agreement.

-Liability in tort arises from the primary obligations imposed on an individual by law.

2. For a person to use in the law of contract, it has to be

- For a person to sue, there is no need of establishing whether or

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established that there is a pre-existing contractual relationship.

not there is a pre-existing contractual relationship, because a stranger can sue and still succeed under the law of torts.

3. A person can be compensated for purely financial losses.

-A person may not be compensated for purely financial losses, unless financial loss caused by bodily injury.

4. The law of contract does not deal with bodily injury claims.

-The law of tort deals with personal injury claims.

5. Remedies such as punitive damages may not be awarded in the la w of contract.

-Punitive damages may be awarded in the law of torts for personal injury claims to deter the wrongdoer from committing the same wrong in future.

The Court System

A group of human beings, large or small, develops principles governing the relationship of those within the group with each other-their responsibilities and rights as members of the group. At their most developed and comprehensive level, these principles make up the legal systems of states. Different legal systems have evolved in different parts of the world, each from a range of sources. In Zambia, the legal system is administered mainly through the judicature, which uses the court system to administer justice.

The constitution provides that the judicature shall be autonomous and shall be administered in accordance with the provisions of an Act of parliament. The judicature shall be independent and subject to only the constitution. The judiciary shall consist of superior court of judicature comprising of;

       Supreme Court       High Court       Industrial Court       Subordinate Courts       The Local Courts       Such other courts as may be prescribed by Act of parliament.

 The judiciary has jurisdiction in all matters civil and criminal, including matters relating to the constitution, and such other jurisdiction as by law conferred on it. The superior courts are courts of record and have power

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to commit for contempt to themselves and all such powers as were vested in a superior court of record immediately before the commencement of the constitution. Judicial tenure and remunerationArticle 98(1) provides a position holding the offices of a judge of the Supreme Court or the office of a judge of the high court shall vacate that office on attaining the age of 65 years. Provided that the president –(a) may appoint a judge of the supreme court, who has attained that age to continue in office for such further period, not exceeding seven years as the president may determine. Judges along with other specified officers such as attorney general, investigators- general solicitor- general director of public prosecutions are paid from the general revenues of the republic. Such salaries and or allowances may be presented by or under an act of parliament. Article 119(3) provides that the salary payable to the holder of any holder of office shall not be uttered to his disadvantage after his appointment. Note article 96. Removal of judges from officeAccording to Article 98(2) a judge of the Supreme Court, high court chairman of deputy chairman of the industrial relations court may be removed from office only for inability to perform the functions of his office whether arising from infirmity of body or mind, incompetence or misbehaviour and shall not be so removed except in accordance with the provisions of this article. The Supreme CourtArticle 92 establishes the supreme court of Zambia, which shall consist of: the chief justice, the deputy chief justice, seven Supreme Court judges or such greater number as may be prescribed by an act of parliament. The Supreme Court is a superior court of record. The High CourtArticle 97 establishes the high court of Zambia which shall have, except as to the proceedings in which the industrial relations court has exclusive jurisdiction under the industrial relations (act no.27 of 1993), unlimited or original jurisdiction to hear and determine any civil or criminal proceedings under any law and such jurisdiction and powers as may be conferred on it by this constitution or any other law. The high court shall be divided into such divisions as may be determined by an act of parliament 94(2). The chief justice shall be such an ex-offices judge of the high court (3). The other judges of the high court shall be such number of puisne judges as maybe prescribed by parliament.

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 Article 94(6) provides that the high court shall be a superior court of record. The high court has jurisdiction to supervise any civil or criminal proceedings before any subordinate court or any court martial and may such order issues such as writs and give such direction as it may consider appropriate for the purposes of ensuring that question as is duly administered by such court.

 Specialist courts in ZambiaApart from the Supreme Court and the High Court which are ordinary courts, Zambia also has specialist courts set up to deal with particular matters. These are creatures of statute, with limited jurisdiction as set out in the legislation establishing them. The Industrial Court and Local courts are examples of specialist courts in Zambia. The Industrial relation Court is established under Article 91(1) of the Constitution of Zambia. It is also established under the Industrial Labour Relations Act Cap 269 of the Laws of Zambia. It deals with matters of employment law. It is composed of a chairman, deputy chairman, and not more than ten members as the Minister of labour may appoint.

Section 3 of the Subordinate courts act establishes the classes of courts which are subordinate to the High Court. These are as follows:

Subordinate Courts of First ClassA Subordinate Court of First class is presided over by a principal Resident Magistrate who is mandated to handle a case of not more than K30,000,000.

Subordinate Courts of the Second ClassA subordinate Court of the Second Class is presided over by a Magistrate of the second class mandated not to handle a case of more than K8,000,000.

Subordinate Court in the Third ClassA subordinate court of the third class is presided over by a Magistrate of the third class mandated to handle cases of not more than K4,000,000.

Section 4 of the Subordinate Courts Act states that the appointment of Magistrates shall be made by the Judicial Service Commission. Subordinate courts are also courts of record. Appeals from Subordinate Courts against any judgment or order go to the High Court. 

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The Local CourtsThe local courts play an important part in the settlement of disputes of the majority of the majority of the population the customary law itself is in a state of flux. The main thrust of the law governing the operation of the Local Courts, contained in Chapter 29 of the Laws of Zambia, is the administration of customary law. In reality the Local Courts are the focal point of varied societal claims. Customary law is the ambiguous expression in which are hidden many legal claims. It can be safely asserted that Local Courts are the clearing grounds for simple torts, contracts, and petty crimes. There is no uniform formal educational qualification for adjudicators of local courts. They bring important innovation in the administration of community justice derived in part from their practical understanding of the workings of a post-traditional society. These justices are often fluent in more than four local languages. 

Small Claims CourtsThere is on the Zambian statute books the Small Claims Court Act. The objective of the Act is to provide for the establishment, of Small Claims Courts 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. However the idea of Small Claim Courts is a very good one. It depends on involvement of legal practitioners of 5 year standing with more personnel allocated to them. The Small Claims Court could utilize existing infrastructure such as school buildings, community halls and several others.

Who may institute a claim? Anyone except registered entities such as companies or

corporations A person under the age of 21 years must be assisted by

parents or legal guardians

Some matters are excluded from the jurisdiction of the court such as claims exceeding K20,000,000; claims for damages in respect of defamation, malicious prosecution, wrongful imprisonment and arrest seduction, administration of a will; claims under customary law; claims of specific performance and claims against the state.

How to commence an action in a Small Claims CourtAn action will be commenced by issuing a letter of demand to the defendant which sets out the claim. This claim should be made within fourteen days. What needs to be taken to the court is a contract letter, or

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any other proof upon which the claim is based. The defendant should also disclose his or her full name and address. No appeal may be filed against a judgment or the order of the court.

The legal professionIn practice, legal jurisdictions exercise their right to determine who is recognized as being a lawyer. As a result, the meaning of the term "lawyer" may vary from place to place.

In Australia, the word "lawyer" is used to refer to both barristers and solicitors (whether in private practice or practising as corporate in-house counsel).

In Canada, the word "lawyer" only refers to individuals who have been called to the bar or, in Quebec, have qualified as civil law notaries. Common law lawyers in Canada are formally and properly called "barristers and solicitors", but should not be referred to as "attorneys", since that term has a different meaning in Canadian usage. However, in Quebec, civil law advocates (or avocats in French) often call themselves "attorney" and sometimes "barrister and solicitor" in English.

In England and Wales, "lawyer" is used to refer to practitioners such as barristers, solicitors, and licensed conveyancers, as well as people who are involved with the law but do not practise it on behalf of individual clients, such as judges, court clerks, and drafters of legislation.[citation needed]

In India, the term "lawyer" is often colloquially used, but the official term is "advocate" as prescribed under the Advocates Act, 1961.

In Scotland, the word "lawyer" refers to a more specific group of legally trained people. It specifically includes advocates and solicitors. In a generic sense, it may also include judges and law-trained support staff.

Responsibilities

Notably, England, the mother of the common law jurisdictions, emerged from the Dark Ages with similar complexity in its legal professions, but then evolved by the 19th century to a single dichotomy between barristers and solicitors. An equivalent dichotomy developed between advocates and procurators in some civil law countries, though these two types did not always monopolize the practice of law as much as barristers and solicitors, in that they always coexisted with civil law notaries.

Oral argument in the courts

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Arguing a client's case before a judge or jury in a court of law is the traditional province of the barrister in England, and of advocates in some civil law jurisdictions.] However, the boundary between barristers and solicitors has evolved.

Research and drafting of court papers

Often, lawyers brief a court in writing on the issues in a case before the issues can be orally argued. They may have to perform extensive research into relevant facts and law while drafting legal papers and preparing for oral argument.

In England, the usual division of labour is that a solicitor will obtain the facts of the case from the client and then brief a barrister (usually in writing). The barrister then researches and drafts the necessary court pleadings (which will be filed and served by the solicitor) and orally argues the case.

Advocacy (written and oral) in administrative hearings

In most developed countries, the legislature has granted original jurisdiction over highly technical matters to executive branch administrative agencies which oversee such things. As a result, some lawyers have become specialists in administrative law their informality.

Client intake and counselling (with regard to pending litigation)

An important aspect of a lawyer's job is developing and managing relationships with clients (or the client's employees, if the lawyer works in-house for a government or corporation). The client-lawyer relationship often begins with an intake interview where the lawyer gets to know the client personally, discovers the facts of the client's case, clarifies what the client wants to accomplish, shapes the client's expectations as to what actually can be accomplished, begins to develop various claims or defences, and explains her or his fees to the client.

Legal advice

Legal advice is the application of abstract principles of law to the concrete facts of the client's case in order to advise the client about what they should do next. In many countries, only a properly licensed lawyer may provide legal advice to clients for good consideration, even if no lawsuit is contemplated or is in progress. Therefore, even conveyancers and corporate in-house counsel must first get a license to practice, though

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they may actually spend very little of their careers in court. Failure to obey such a rule is the crime of unauthorized practice of law.

Protecting intellectual property

In virtually all countries, patents, trademarks, industrial designs and other forms of intellectual property must be formally registered with a government agency in order to receive maximum protection under the law. The division of such work among lawyers, licensed non-lawyer jurists/agents, and ordinary clerks or scriveners varies greatly from one country to the next.

Negotiating and drafting contracts

In some countries, the negotiating and drafting of contracts is considered to be similar to the provision of legal advice, so that it is subject to the licensing requirement explained above. In others, jurists or notaries may negotiate or draft contracts.

Conveyancing

Conveyancing is the drafting of the documents necessary for the transfer of real property, such as deeds and mortgages. In some jurisdictions, all real estate transactions must be carried out by a lawyer (or a solicitor where that distinction still exists). Such a monopoly is quite valuable from the lawyer's point of view; historically, conveyancing accounted for about half of English solicitors' income (though this has since changed), and a 1978 study showed that conveyancing "accounts for as much as 80 percent of solicitor-client coNew South Wales]

Carrying out the intent of the deceased

In many countries, only lawyers have the legal authority to draft wills, trusts, and any other documents that ensure the efficient disposition of a person's property after death. In some civil law countries this responsibility is handled by civil law notaries.

Prosecution and defense of criminal suspects

In many civil law countries, prosecutors are trained and employed as part of the judiciary; they are law-trained jurists, but may not necessarily be lawyers in the sense that the word is used in the common law world. In common law countries, prosecutors are usually lawyers holding regular licenses who simply happen to work for the government office that files

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criminal charges against suspects. Criminal defense lawyers specialize in the defense of those charged with any crimes.

Education

The educational prerequisites to becoming a lawyer vary greatly from country to country. In some countries, law is taught by a faculty of law, which is a department of a university's general undergraduate college. Law students in those countries pursue a Master or Bachelor of Laws degree. In some countries it is common or even required for students to earn another bachelor's degree at the same time. Nor is the LL.B the sole obstacle; it is often followed by a series of advanced examinations, apprenticeships, and additional coursework at special government institutes.

Earning the right to practice law

Some jurisdictions grant a "diploma privilege" to certain institutions, so that merely earning a degree or credential from those institutions is the primary qualification for practicing law.[85] Mexico allows anyone with a law degree to practice law.[86] However, in a large number of countries, a law student must pass a bar examination (or a series of such examinations) before receiving a license to practice.

Specialization

In many countries, lawyers are general practitioners who will take almost any kind of case that walks in the door. In others, there has been a tendency since the start of the 20th century for lawyers to specialize early in their careers. In countries where specialization is prevalent, many lawyers specialize in representing one side in one particular area of the law; thus, it is common in the United States to hear of plaintiffs' personal injury attorneys.

Organization

Lawyers in private practice generally work in specialized businesses known as law firms, with the exception of English barristers. The vast majority of law firms worldwide are small businesses that range in size from 1 to 10 lawyers. The United States, with its large number of firms with more than 50 lawyers, is an exception. The United Kingdom and Australia are also exceptions, as the UK, Australia and the U.S. are now home to several firms with more than 1,000 lawyers after a wave of mergers in the late 1990s.

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Professional associations and regulation

Mandatory licensing and membership in professional organizations

In some jurisdictions, either the judiciary or the Ministry of Justice directly supervises the admission, licensing, and regulation of lawyers. Other jurisdictions, by statute, tradition, or court order, have granted such powers to a professional association which all lawyers must belong to.

Who regulates lawyers?

A key difference among countries is whether lawyers should be regulated solely by an independent judiciary and its subordinate institutions (a self-regulating legal profession), or whether lawyers should be subject to supervision by the Ministry of Justice in the executive branch. In Zambia lawyers are regulated by the Law Association of Zambia.

Separation of powers

Meaning of the doctrine of Separation of Powers

The governance of a country hinges on three vital organs namely; the executive, legislature and the judiciary. It has been stated by scholars in antiquity that for there to be true democracy and liberty, it is of absolute importance that the three organs of government should as far as possible be separate so as to enhance proper checks and balances. This unit gives a critical assessment of the doctrine separation of powers.

The Doctrine

The separation of powers is a doctrine, which is fundamental to the organisation of a state - and to the concept of constitutionalism - insofar as it prescribes the appropriate allocation of powers, and limits of those powers, to differing institutions. The extent to which powers can be, should be, separate and distinct was a central feature in formulating, for example, both the American and French revolutionary constitutions.

A number of interpretations ensue from the concept of separation of powers propounded by Montesquieu. Sir Ivor Jennings has interpreted

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Montesquieu’s words to mean not that the legislature and the executive should have no influence over the other, but rather that neither should exercise the power of the other.

The Executive (Part IV) Zambian Constitution

This is a branch of the state that formulates policy and is responsible for its execution. The president in Zambia and Prime Minister in Britain is the head of the executive. In the Zambian presidential system which has adopted a British type has both the president as head of state and of the government. In Britain on the other hand, the Queen is head of state and the Prime Minister Head of the government (executive). The president elected from a political party in a general election constitutes and heads the executive. The president’s first task after election is to form a cabinet which he appoints from members of parliament. Conventionally, the president is supposed to appoint to cabinet members of parliament belonging to the same political party as his. In addition, the Civil Service, Local Authorities, Police and Armed Forces all fall within the jurisdiction of the executive.

The Legislature (Part V)

The republican constitution vests legislative powers in Parliament which is composed of the President and the National Assembly. All Bills are passed by the National Assembly at Lusaka and receive the presidential assent to become law (statutes/Acts of Parliament). Article 62 of the republican constitution provides for the National Assembly in Lusaka to be the organ with legislative powers of the Republic of Zambia. Members of the National Assembly/legislature are directly elected to the house from their respective constituencies by the electorate and are directly answerable to them. Under the current constitution, parliament has a maximum term of five years. The house is made up of members from different political parties each elected from a single constituency to represent the interests of the electorates and sometime those of the political party that sponsored a member for membership during parliamentary elections. There are a total of one hundred and fifty elected members of parliament representing one hundred and fifty constituencies. A further not more than eight members are nominated by the president to the house.

The Judiciary (Part VI)

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This is the branch of the State that adjudicates upon conflicts arising from state institutions, between state institutions and individuals, and between individuals themselves. The judiciary is the bedrock of democracy hence the need to ensure its independent from the influence of the other two institutions especially the executive. It is the feature of judicial independence, which is of prime importance both in relation to government according to law and in the protection of liberties of citizens against the excesses of the executive.

Relationship between: The Executive and Legislature; Legislature and Judiciary; Executive and

Judiciary

In order to fully understand the concept of the separation of power, it is necessary to evaluate the manner in which, and extent to which, separate functions are allocated between the differing bodies and kept separate. This task is most conveniently undertaken by examining the relationship between first, the executive and legislature, secondly, the legislature and judiciary and, thirdly, the executive and the judiciary.

Executive and Legislature

Parliament provides the personnel of government. Ministers appointed by the president to Cabinet must be Members of Parliament. It is thus immediately apparent that the executive, far from being separated from the legislature, is drawn from within its ranks. Due to this link between the executive and legislature, some writers have denounced the theory of separation of powers. In the English Constitution, Walter Bagehot denounced the separation of powers in the English constitution from where the Zambian system derived. He however did recognise and appreciate the clear merits the link between the two organs.

Legislature and Judiciary

The perception that Parliament is sovereign and that the judiciary is subordinate to Parliament, is paradoxical to the assertion that the judiciary is independent. Under the English law conventions from where the Zambian system borrows the bulk of its legal system, are Parliamentary conventions dictating that there should be no criticism levelled at the judges from members of the executive to reinforce their independence - but not from other Members of Parliament. Parliamentary practice prohibits the criticism of judges other than under a motion expressing specific criticism. It was however not regarded as a breach of

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conventional rules when the then British Prime Minister Margaret Thatcher, in Parliament, criticised the light sentence imposed on a child molester.

Judges as Legislators

One of the most debated aspects of the relationship between the legislature and the judges lies in the question: 'Do judges make law?' in constitutional terms, the issue is whether by making law - either by virtue of the doctrine of precedent or through the interpretation of statutes - the judges are usurping the legislative function or, in other words, violating the separation of powers. Statutory interpretation is not however straightforward, even though Acts of Parliament are couched in detailed language in order to maximise clarity and minimise vagueness or obscurity. Despite the attempt to achieve clarity in statutory language, it is artificial to deny that judges 'make law'.

Executive and Judiciary

With regard to the relationship between the executive and the judiciary there are several matters with implications for the separation of powers requiring examination: the attitude of the courts in matters entailing the exercise of prerogative powers; parliamentary privilege; judicial review; the role of judges in non-judicial functions; and the role of the Law Officers of the state.

Prerogative Powers

Prerogative powers have significant implications for the separation of powers. Being the residue of presidential powers, the prerogative is part of the common law and hence amenable to the jurisdiction of the courts. Today, most of the prerogative powers are exercised by government departments in the name of the president. Therefore, the substance of many prerogative powers is political, entailing matters of policy which the judges are not competent to decide on or, matters which, if ruled on by the judges in a manner inconsistent with the interpretation of the executive, would place the judges in a sensitive constitutional position and open to accusations of a violation of the separation of powers. That is, however, not to suggest that the courts have no role to play with respect to prerogative powers. The traditional role of the courts is to rule on the existence and scope of the prerogative, but - having defined its existence and scope - to decline thereafter to rule on the exercise of the power.

Rationale for the Doctrine of Separation of Powers

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The doctrine of separation of powers has not just been developed for fanciful reasons of the three institutions being separate from one another. The rationale is to ensure that each of the three organs uses its powers in the process of governing a country to bring the other in line where the other would act contrary to powers conferred by statutes or by the constitution. What therefore justifies the doctrine of separation of powers is the principle of checks and balances which require that each of the three institutions should work to check and keep in balance the powers of the other. Of the three organs, the judiciary has a bigger role to play in keep checks and balances than the other two. It is for this reason that the independence of the judiciary is fully maintained so it can perform that role effectively.

The judiciary does equally get checked however by the other two institutions. For instance, in the United States of America and Britain, members of the bench are appointed by the president (executive) with the ratification of Senate and their removal by Congress (legislature). In Britain, Judges are appointed by the Queen with the Prime Minister’s (executive) recommendation and they are removed by Parliament (Houses of Commons and Lords). In Zambia equally, judges are appointed by the president (executive) with parliamentary ratification but unfortunately equally removed by him without parliamentary consent.

The judiciary checks both the executive and legislature mainly by way of judicial review in Zambia and the United States of America where the two countries have written constitutions which stands as the supreme law of the two countries. In Britain however the judiciary can only check the executive by way of judicial review because of the doctrine of Parliamentary supremacy/sovereignty in that country.

The Rule of Law

The study of constitutional law looks at a country’s constitution and the provisions contained therein. As already known by now, a constitution is either a single document or pieces of documents that contain rules on which a government derives authority to govern the people. However, the constitution alone does not suffice without guiding principles on how governance in fact should be conducted and, this unit looks at one of the fundamental constitutional doctrines that explains how constitutional governance is conducted.

AV Dicey and the Rule of Law

Alvin Venn Dicey first published his Introduction to the Study of the Law of the Constitution, based on lectures he gave as Vinerian Professor of

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English Law at All Souls College, Oxford University in 1885. In his analysis of the English constitution, Dicey offered his views on the concept of the rule of law. Hitherto, his views continue to exert influence on the concept of rule of law in constitutional law.

Dicey argued that the rule of law - in its practical manifestation - has three limbs:

. no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land. In this sense, the rule of law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraints.1

. no man is above the law; every man and woman, whatewver be his or her rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.2

. the general principles of the constitution (for example the right to personal liberty, or the right of public meetings) are, with us, the result of judicial decisions determining the rights of private persons in particular cases brought before the courts.

The general principle underlying the concept of rule of law embraces three aspects mainly that, orderly life within an organised community (law and order), is preferred rather than a situatuation of anarchy or strife in which there is no security for persons, ther well-being or their possessions. Secondly, the rule of law expresses a principle of fundamental importance, namely that government must be conducted according to law and that in disputed cases what the law requires is declared by judicial decisions and, thridly the rule of law refers to a body of opinion, both about what powers the government should have, for example, that the executicve should have no power to detain without trial and about the procedures to be followed when action is taken by the state, examle the right to a fair hearing in a criminal trial.

1 Waddington v Miah [1974] 1 WLR 683, Burma Oil v Lord Advocate[1965] AC 75, R v R [1991] 2 WLR 1065; 2 ALL ER 257, CA;[1991]3 WLR 767, HL.

2 Malone v Metropolitan Police Commissioner [1979] Ch 344

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The three limbs of the rule above are important giudes in constitutional governance of any state. Following his election as republican president Levy P Mwanawasa’s main theme was to conduct a government that was to be of laws and not of men where law would overtake arbitrariness in the conduct of governance. The second limb for example emphasises an important aspect in governing a country as demonstrated by the recent case in Zambia of the former minister of Transport and Communications honourable Dora Siliya who allegedly breached regulations in the ministerial and parliamentary code of conduct meant to guide ministers in their ministerial functions. A tribunal to investigate the breaches was set but established that no breaches as alleged existed but found a constitutional breach in having awarded a contract without heeding the advice of the Attorney General.3

Judicial Review

With reference to countries like Zambia and the United States of America, judicial review can be defined as powers conferred on courts to judicially review administrative functions of the executive and legislative acts of parliament. The former concerns action designed to keep those persons and bodies with delegated powers within the scope of the power conferred upon them by Parliament which equally applies to the United Kingdom and the latter looks at legislative powers of the legislature which are to be exercised in conformity with the law contained in the constitution and limited only to Zambia and the United States which are organised on the supremacy of the constitution and not parliament. Therefore, where the executive carries out administrative functions in a manner not stipulated by an Act of Parliament (ultra vires) the courts will adjudge the action of the executive null and void. Equally where the legislature legislate laws that are inconsistent with the law of the constitution, the courts will adjudge such laws unconstitutional and render them null and void as the case in Christine Mulundika and 7 Others.

In sum and for the reasons which we have given we hold that subsection 4 of section 5 the Public Order Act, CAP 104, contravenes Articles 20 and 21 of the constitution and is null and void, and therefore invalid for unconstitutionality. It follows also that the invalidity and the constitutional guarantee of the rights of assembly and expression preclude the prosecution of persons and the criminalisation of gatherings in contravention of the subsection pronounced against. Accordingly, a prosecution based on

3 (article 54 (3) subject to the other provisions of thi constituton, an agreement, contract, treaty, convention or document by whatever name called, to which government is a party or in respect og which the government has an interest, shall not be concluded without the legal advice of the Attorney-General, except in such cases and subject to such conditions as parliament may by law prescribe.

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paragraph (a) of section 7 which depends on subsection 4 of section 5 would itself be inconsistent with the constitutional guarantees and equally invalid. The appeal is allowed.4

Sample Questions

1. Define the word law.2. List and explain at least five functions of law in society.3. Discuss the doctrine of separation of powers in the Zambian legal

system.4. What is the relationship between the rule of law and separation

of powers.5. Describe the main characteristics of a democratic society like

Zambia.

References:

Besa Mulenga, (2011) Democracy and Governance

Pierre Joseph, General Idea of Democracy, 2001, Canada

Bagley Carol; Ruckman, Jo Ann, Iroquios Contributions to Modern Democracy and Communism. American Indian Culture and Reserach Journal, V 7 n2 P53-72 1983

4 Christine Mulundika and 7 Others v The People SCZ Appeal No 5 1995

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CHAPTER TWO

HUMAN RIGHTS

Introduction

Human rights have been defined as basic moral guarantees that people in all countries and cultures allegedly have simply because they are people. This suggests that they are attached to particular individuals who can invoke them; they are of high priority and compliance with them is mandatory rather than discretionary. 5

Learning Objectives

At the end of this chapter students must be able to:

i. Define human rights an d explain their importance

5 Cerna C.M. ‘Universality of Human Rights and Cultural Diversity: Implementation of Human Rights in Different Socio-Cultural Contexts (1994) 16 Human Rights Quarterly 740, 752

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ii. Give the characteristics of human rightsiii. Categorize each right appropriatelyiv. Explain redress available in case of human rights violationsv. Explain the relationship between human rights and international

law

Characteristics of human rights

The following are the characteristics of human rights:

- Human rights are inviolable- Human rights are universal- Human rights are inherent- Human rights are indivisible- Human rights are interdependent

The Bill of Rights

The Bill of Rights is provided under Part III of the constitution. It contains fundamental rights and freedoms of the people in Zambia. This unit does not look at all the provisions under the Bill of Rights as such would be a mammoth task. The unit looks at some salient provisions of the Bill in terms of the protection of fundamental freedoms and human rights. The unit equally looks at the mechanism for redress where an individual feels his/her rights have been, are being or are about to be infringed.

Eligibility to seek constitutional protection

Law is law and to what extent it can extend and who can claim rights under a particular law is another aspect that should very well be known. In some jurisdictions it is found that only citizens of the country would claim the protection under the constitution. It is imperative to know under the Zambian constitution who has the right of claim in instances of violation of alleged rights and freedoms conferred under the constitution. Part III of the constitution contains twenty-two articles from eleven to thirty-two. Before making provisions under this part, it was first imperative that rights and freedoms are expressly asserted and equally those to whom they apply are clearly defined. Article 11 the very first in the Bill of Rights makes express provisions with regard to those who can claim rights under the constitution. Article 11 provides as follows:

11. It is recognised and declared that every person in Zambia has been and shall continue to be entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever his race, place of

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origin, political opinions, colour, creed, sex or marital status, but subject to the limitations contained in this Part, to each and all of the following, namely:

(a) life, liberty, security of the person and the protection of the law;

(b) freedom of conscience, expression, assembly, movement and association;

(c) protection of young persons from exploitation;

(d) protection for the privacy of his home and other property and from deprivation of property without compensation;

and the provisions of this Part shall have effect for the purpose of affording protection to those rights and freedoms subject to such limitations of that protection as are contained in this Part, being limitations designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest.

Article eleven is fundamental because it is here where one would know whether in fact they do have rights under the constitution in Zambia which they can claim or not. From the article itself, it is evident that any person in Zambia has the protection of the constitution when interpreted literally. The constitution in Zambia does not discriminate against non-Zambians in offering protection in event of violation. Paragraphs (a)(b)(c) and (d) above condenses almost all articles under the Bill of Rights. The paragraphs provide for rights that are protected under the constitution but of course subject to limitations which, again, are provided for under Part III.

It is important to note that the protections under the constitution are always subject to limitations. The limitations are as provided under this Part and usually contained in the last clause of the article granting the rights. Limitations may sometimes be called provisos, meaning conditions placed on the enjoyment of certain rights conferred under the constitution so that certain freedoms under the constitution may be ignored in advancement of the common good of society. Only certain articles of Part III, as we shall later see, may not be ignored notwithstanding circumstances otherwise, majority of them can be ignored.

Fundamental Rights

Part III has made general provisions with regards to rights and freedoms. However the two can be considered separately as they are indeed distinct. One represents what may be deemed absolute rights of the individual (fundamental rights) and the other mainly privileges that as

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human beings we get especially in advancement of democratic principles and tenets but can again easily be taken away in a prescribed manner when circumstances arise (fundamental freedoms). The Zambian constitution provides for four fundamental rights which cannot be ignored notwithstanding the situation as may be declared under provisions of article 25 and a declaration under article 30. Articles 12 (right to life), 14 (protection from slavery and forced labour), 15 (protection from inhuman treatment) and 18 (protection of the law) contain fundamental rights never to be ignored.

Fundamental freedoms

Freedoms do not have the same status as rights above. Freedoms are largely conferred on societies especially those democratic, to enhance democratic tenets and principles. It is imperative that if democracy has to flourish in any country, there are certain freedoms that citizens should have. Important among freedoms in a democracy are freedom of expression under Article 20, freedom of assembly and association Article 21 and freedom of movement. These do not comprise the only important freedoms under Part III of the Zambian constitution. They are a selected few from where case studies may be had on how the courts have upheld the same freedoms’ importance where laws enacted by Parliament contravened them otherwise, all freedoms under Part III are equally important.

Derogations form fundamental freedoms

Article 25

As indicated above, freedoms are not the same as rights hence not absolute meaning they can be derogated from where circumstances justifying such arise. Derogation means, as stated where justifiable circumstances arise, freedoms contained under Part III of the constitution can be overlook and acts can be carried out by the government contrary to the provided freedoms and such action would be justified and would not be held unconstitutional because a situation may require that such action is actually carried out to ensure security for the public. It is mainly for security reasons that derogations would be made.

Article 25 provides expressly the freedoms under Part III that may be derogated from. Articles 13, 16, 17, 19, 20, 21, 22, 23 and 24 are all freedoms that in certain justifiable circumstances may be taken away by the government but only for a specific period and any extension would have to be approved by Parliament.

Article 30

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For purposes of implementing provisions of Article 25 above the constitution has conferred in the president powers to declare a state of public emergency which then would suspend the freedoms considered above. Article 30 has two functions that of conferring power on the president to declare a public emergency and the other of ensuring the public emergency so declared is checked and does not extend unnecessarily for longer periods. The president may therefore declare that a state of public emergency exists but the state of public emergency so declared can only stand for seven days after which, if the president considers that a situation still continues justifying the continuation of the public emergency, then the President may extend the existence of the public emergency but only with the approval of the National Assembly where a resolution for the support of the extension of the emergency should be by a majority of all the members of the National Assembly with exception of the Speaker.

Where the National Assembly approves the extension of a public emergency, such extension can only be for a period not exceeding three months and any further extensions approved can only be for a period not exceeding three months. Article 30 therefore works as a safeguard measure to ensure any seating president does not without justification and to his/her advantage declare public emergency and extends the same where situations may not really arise.

Enforcement of protective provisions

Article 28

Just having Part III providing for the rights and freedoms that people have in the country would be meaningless without provisions for how the rights and freedoms may be invoked. Article 28 provides the people with enforcement mechanisms where they allege there rights and freedoms under Part III have been, are being or likely to be contravened then people can seek the intervention of the High Court where redress would be sought. In Fred Mmembe, Bright Mwape v The People & Fred Mmembe, Masautso Phiri, Goliath Munkonge v The People,6 the defendants charged under section 69 of Cap 146, challenged the constitutionality of the said section as contravening Articles 20 and 23 of the constitution. The defendants under the provisions of Article 28, applied in limine from the magistrates trying them to the High Court to determine the constitutionality of section 69. See case below.

6 (1996) S.C.Z. JUDGMENT No 4 of 1996

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The Bill of Rights makes important provisions for the safeguard of human rights and fundamental freedoms. However, noteworthy equally is the fact that within the Bill of Rights, provisions have been provided justifying certain actions by the government otherwise repugnant to the contents of the same Bill of Rights but only in seriously justifiable circumstances. The provisos to the guaranteed rights and freedoms equally had to be placed in the Bill of Rights so that it is not easy for them to be amended so as to provide less stricter conditions for derogation since, amendment to the provisos would mean amendments to Part III thereby the stringent procedures under Article 79 of the constitution applying.

In the case of Amnesty International v. Zambia, African Commission on Human and Peoples' Rights, Commission,7 the communication was submitted by Amnesty International on behalf of William.S.Banda and John.L.Chinula who were both deported on the premise that their presence was a threat to peace and good order in Zambia. They alleged that Zambia violated the provisions of the African Charter. William Banda exhausted all domestic remedies in the Supreme Court of Zambia. John Chinula could not effect any remedies through the Zambian courts because he was deported and was given no opportunity to approach the Zambian courts.

Complaint

1.Complainant alleged that Articles 2, 5, 7(1)(a), 8, 9, 9(2), 10, 12(2), 13(1), 18(1), 18(2) of the African Charter had been violated.

Procedure

2. Communication is dated 6 March 1998 and was sent by mail.

3. On 18 March 1998, a letter was sent to the complainant acknowledging receipt.

4. At its 23rd ordinary session held in Banjul, The Gambia, the Commission decided to be seized of this matter and declared the communication admissible.

5. On 10 July 1998, the Secretariat of the Commission wrote to the Ministry of Foreign Affairs, Zambia, informing them of the decision of the

7 No. 212/98 (1999).

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23rd Ordinary Session, drawing attention to the request for provisional measures to be taken by the government of Zambia.

6. A copy of the Note was also sent to the Embassy of Zambia in Addis Ababa. The Embassy replied on 21 September 1998.

7. The representative of the Government of Zambia appeared before the Commission on 26th and 27th of October 1998 at the 24th ordinary session. He presented a statement in response to the communication.

8. At the 24th ordinary session, the Commission postponed consideration of this for a decision on the merits to the next session.

9. On 26th November 1998, the Secretariat conveyed the decision of the Commission to the parties concerned and it rules in favour of the complainants.

Zambia ratified the African Charter on Human and Peoples’ Rights in January 1984.

International Human Rights Law

International human rights law is the body of international law designed to promote and protect human rights at the international, regional and domestic levels. As a form of international law, international human rights law is primarily made up of treaties, and customary international law. Other international human rights instruments while not legally binding contribute to the implementation, understanding and development of international human rights law.8

Historical background

8 Provost, René (2002). International human rights and humanitarian law. Cambridge, UK: Cambridge University Press. p. 8.

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In primitive societies, organisation was based on communalism.9 The emergence of states saw the organisation and distribution of power based on law. With this came the growth of “rights” and evolving notions of what they constitute, and eventually the development of “human rights” law.10 The emergence of states saw the organisation and distribution of power based on law. The State is a bearer of duties in respect of individual persons, who depend on it for the protection of their rights; and are entitled to claim against it for violations of these rights.

International Bill of Human RightsThe Universal Declaration of Human Rights is a UN General Assembly declaration that does not in form create binding international human rights law, but it has provided the basis for subsequent international human rights instruments that form binding international human rights law.

Besides the adoption in 1966 of the two wide-ranging Covenants that from part of the International Bill of Human Rights namely the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, a number of other treaties have been adopted at the international level. These human rights instruments are:

Convention on the Prevention and Punishment of the Crime of Genocide11

Convention Relating to the Status of Refugees12

Convention on the Elimination of All Forms of Racial Discrimination 13

Convention on the Elimination of All Forms of Discrimination Against Women14

United Nations Convention Against Torture 15

9 Ayittey G. Africa Betrayed (New York: Transnational Publishers Inc., 1992) 82. 10 De Souza E.F. The Portuguese Colonialism in Africa : The End of an Era : The Effects of Portuguese Colonialism on Education, Science, Culture and Information (Paris :UNESCO Press, 1974). 11 194812 195113 196514 1981151984

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Convention on the Rights of the Child 16

International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families17

Convention on the Rights of Persons with Disabilities 18

International Convention for the Protection of All Persons from Enforced Disappearance19

It must be appreciated that the United Nations, so far, is the only organisation which has gained the status of an international organisation as evidenced from history. It has managed to operate under a universalist approach and therefore, one of its main functions is to protect and promote human rights as evidenced above. However, for reasons of efficiency the UN gives a leeway to other institutions to join forces with it for this noble cause. These are regional institutions; furthermore it also encourages each state to have a system of respecting human rights.

16 198917 199018 200819 2006

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Regional protection and institutions

Regional systems of international human rights law supplement and complement national and international human rights law by protecting and promoting human rights in specific areas of the world. There are three key regional human rights instruments which have established human rights law on regional basis:

Americas

The Organisation of American States and the Council of Europe, like the United Nations have adopted treaties containing catalogues of economic, social and cultural rights. The conventions dealing with civil and political rights are the European social Charter of 1961 and an additional Protocol which has been in force since 1998 and the Protocol of San Salvador for the Americas in 1988 in force since 1999.

Africa

The African Union (AU) is a supranational union consisting of 53 African countries.20 The African Charter on Human and People’s Rights is the region’s principal human rights instrument. It emerged under aegis of the Organisation of African Unity (OAU) since replaced by the African Union.

The African Commission on Human and People’s Rights is a quasi-judicial organ tasked with the responsibility of promoting and protecting human rights and collective peoples’ rights throughout the African continent, as well as with interpreting the African Charter on Human and People’s Rights and considering individual complaints of violations of the Charter. 21 The Court of Justice of the African Union is a body that hears matters of human rights violations referred to it by the African commission and passes binding decisions.

Inter-American systemThe Organisation of American States is an international organisation headquartered in Washington. The Inter-American Commission on Human rights is an autonomous organ of the Organisation of American States. The Inter-American Court of Human Rights is one of the bodies in the American system for the promotion and protection of human rights. It is a permanent body which meets in

20 "AU Member States". African Union21 Mandate of the African Commission on Human and Peoples' Rights"

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regular and special sessions several times a year to examine allegations of human rights violations in the hemisphere.

European system

The Council of Europe founded in 1949 is the oldest organisation working for European integration. This council is responsible for both the European Convention on Human Rights and the European Court of Human Rights.22 The Council is separate from the European Union but it includes all members of the European Union. The European Union has a separate human rights document, the Charter of Fundamental Rights of the European Union.23 The European Court of Human Rights is the only international court with jurisdiction to deal with cases brought by individuals rather than states.24

State Institutions

Each state is expected to have certain institutions that are directly involved in safeguarding human rights. Institutions best placed to facilitate enforcement at the national level include: Government/Executive, Courts, Parliament, National human rights institutions. The media can also be a tool of advocacy directed at the institutions concerned.

After having looked at the various regional institutions that are involved in the promotion and protection of human rights, it is inevitable to discuss how the observance of these human rights is monitored and implemented under the system of International law.

Monitoring, implementation and enforcement There is currently no international court to administer international human rights law, but quasi-judicial bodies exist 25 under some United Nations treaties like the Human Rights Committee under the ICCPR. The International Criminal Court has the jurisdiction over the crime of genocide, war crimes and crimes against humanity. The European court of Human Rights and the Inter-American Court of Human Rights enforce regional human rights law.

22 "Social Charter". Council of Europe.23 Juncker, Jean-Claude (11 April 2006). "Council of Europe – European Union: "A sole ambition for the European Continent"" (PDF). Council of Europe.24 a b c "Historical Background to the European Court of Human Rights". European Court of Human Rights. Archived from the original on 2225 "The Guardian". The Guardian. UK. 16 July 2008

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The United Nations human rights bodies do have some quasi-legal enforcement mechanisms. These include the treaty bodies attached to the seven currently active treaties, and the United Nations Human Rights Council complaints procedures, with Universal Periodic Review and United Nations Special Rapporteur.26 The enforcement of human rights is the responsibility of the nation state. It is the primary responsibility of the State to make the human rights of citizens a reality. The following are the ways through which human rights can be monitored and implemented:

States to ratify human rights institutions-States that ratify human rights treaties commit themselves to respecting those rights and ensuring that their domestic law is compatible with international legislation. When domestic law fails to provide a remedy for human rights abuses, parties may be able to resort to regional or international mechanisms for enforcing human rights.

Institutions to promote and protect human rights-International law provides that each country must come up with institutions that safeguard human rights to report on legal aid and access to judicial and other recourse mechanisms, to be required to exhaust domestic remedies.

Regional bodies to monitor human rights-Another way through which human rights can be monitored and implemented is through the international, regional and national bodies taking up a regulatory role to ensure that their member states promote and protect human rights. One such example is the United Nations role.

Punishment of human rights violators- At international law there a system through which violations of human rights are dealt with. This is one way of monitoring as those violators are penalised and other people are deterred from violating human rights for fear of punishment.

Observance of democracy-democracy is a system of government which promotes human rights. This can be used as tool to monitor human rights as human rights violations are reported.

26 Known as the 1235 and 1503 mechanisms respectively OHCHR. "Human Rights Council Complaint Procedure"

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Educating the public-this is another way through which human rights are monitored, once the public is educated they supplement government effort to safeguard human rights.

Reporting mechanisms-each country has a reporting mechanisms on any possible violation of human right both at national and international levels. This is in pursuance of monitoring so that all state parties observe human right and also penalties to be snapped on human rights violators.

United Nations Human Rights Monitoring Mechanisms

At the heart of the United Nations monitoring system are the two types of human rights monitoring mechanisms. The so-called conventional mechanisms refer to the specific committees formally established through the principal international human rights treaties. These "treaty bodies" monitor the implementation of the individual conventions by the States parties. Over the years, the United Nations has also developed an independent and ad hoc system of fact-finding outside the treaty framework, which is referred to as extra-conventional mechanisms or "Special Procedures". Independent experts report in their personal capacity as special rapporteurs or as members of working groups.

Treaty Bodies (Conventional Mechanisms)

Treaty bodies have been set up for the six core United Nations human rights treaties to monitor States parties' efforts to implement the provisions of the international instruments.

The Human Rights Committee monitors the implementation of the International Covenant on Civil and Political Rights. Composed of 18 independent experts of recognized competence in the field of human rights. The First Optional Protocol, which entered into force together with the Covenant, authorizes the Committee to consider also allegations from individuals concerning violations of their civil and political rights.

The Committee on Economic, Social and Cultural Rights monitors the International Covenant on Economic, Social and Cultural Rights. Composed of 18 internationally recognized independent experts in the relevant fields.

The members of the Committee on Economic, Social and Cultural Rights are elected by ECOSOC, to which they report.

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The Committee on the Elimination of Racial Discrimination ) monitors the implementation of the International Convention on the Elimination of All Forms of Racial Discrimination. Composed of 18 independent experts, and is the oldest treaty body.

The Committee on the Elimination of Discrimination against Women, composed of 23 independent experts, has monitored the Convention on the Elimination of All Forms of Discrimination Against Women since 1981.

The Committee Against Torture monitors the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Composed of 10 independent experts, the Committee was established in 1987.

The Committee on the Rights of the Child , composed of 10 independent experts, has monitored the Convention on the Rights of the Child since 1991.

Special Procedures of the Commission on Human Rights (Extra-conventional Mechanisms)

The ad hoc nature of the special procedures of the Commission on Human Rights allows for a more flexible response to serious human rights violations than the treaty bodies. Experts entrusted with special human rights mandates act in their personal capacity and are variously designated as Special Rapporteur, Representative, Independent Expert or, when several experts share a mandate, Working Group. They examine, monitor and publicly report to the Commission either on human rights situations in specific countries and territories or on global phenomena that cause serious human rights violations worldwide. Certain special mandates are also entrusted to the Secretary-General or his Special Representatives. While never originally conceived as a system, the nearly 50 country and thematic mechanisms that have been established thus far clearly constitute and function as an effective system of human rights protection.

Country Mechanisms

Currently, some 20 mandates monitor the human rights situation in specific countries, including Afghanistan, Burundi, Cambodia, the Democratic Republic of the Congo (former Zaire), Equatorial Guinea, Haiti, Islamic Republic of Iran, Iraq, Myanmar, Nigeria, Rwanda, Somalia, Sudan, and the former Yugoslavia.

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The General Assembly has established a Special Committee to Investigate Israeli Practices affecting the Human Rights of the Palestinian People and Other Arabs of the Occupied Territories.

Thematic Mechanisms

The General Assembly established a Special Representative of the Secretary-General for Children in Armed Conflict.

However, despite the effort put in by the international community in monitoring and implementing human rights, there are still a vast number of cases reported on human rights violations world over. Some example are America’s attack on the Taliban has up to date not been justified under humanitarian law. This shows how state parties to the agreements do not follow the treaties that they themselves entered into. In practice, many human rights are difficult to enforce legally due to the absence of consensus on the application of certain rights, the lack of relevant national legislation or of bodies empowered to take legal action to enforce them.27 The following, therefore are the recommendations:

-To establish an international institution that will pass binding decisions

-To come up with mechanisms that will ensure that states adhere to human rights

-To encourage co-operation amongst member states to support each other in safeguarding human rights

-Member states must practice observance of human rights and not merely sign on paper.

-To come up with stiffer punishments for human rights violators

Sample Questions

1. Write an essay on the five main sources of law in Zambia.2. Give an account of the development of the doctrine of judicial

precedent.3. What is the rationale for separation of powers?

27 REDRESS, Enforcement of Awards for Victims of Torture and Other International Crimes May, 2006

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4. Why is it important to protect human rights in a democratic country like Zambia?

5. Explain the meaning of constitutional supremacy.

References

Anika Rahman, Laura Katzive and Stanley K. Henshaw. A Global Review of Laws on Fundamental Rights and Freedoms, 1985-1997, International Family Planning Perspectives (Volume 24, Number 2, June 1998).

Besa Mulenga, Zambian Open University Module, Constititional Law Module, ZAOU: ISBN

Bösl, Anton & Diescho, Joseph (Eds), Human Rights in Africa. Legal Perspectives on their protection and promotion; Macmillan Education Namibia 2009. ISBN 978-99916-0-956-0

Doebbler, Curtis F. J (2006). Introduction to International Human Rights Law.. Cd Publishing. ISBN 978-0-9743570-2-7.

Donnelly, Jack (2003). Universal human rights in theory and practice (2nd ed.). Ithaca: Cornell University Press. ISBN 978-0-8014-8776-7.

Freedman, Lynn P.; Stephen L. Isaacs (January 1993). "Human Rights and Development". Studies in Family Planning (Population Council) 24 (1): 1830. Doi:10.2307/2939211.

Forsythe, Frederick P., Encyclopedia of Human Rights (New York: Oxford University Press, 2009)

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CHAPTER THREE

THE LAW OF CONTRACT

The law of contract is a very important topic in law and forms the core of the study of law. This is simply because in our everyday lives, we enter into contracts without realising and this is a source of many disputes. As such it is imperative that students are well equipped with knowledge regulating contracts. Contracts form an integral part of life especially the commercial world.

Learning objectives

At the end of this chapter students must be a able to:

i. Define a contractii. Give the differences between an offer and an invitation to

treatiii. Give the types of invitation to treativ. Define offer, acceptance, consideration, intention to create legal

relations ,and capacity.v. Rules governing the above elements of a contract plus the

supporting casesvi. Display knowledge on the terms of a contract and vitiating

factors which are factors affecting the validity of a contract.vii. Discuss the terms of a contract such as conditions, warranties

and innominate terms; express and implied terms; and exclusion clauses.

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viii. Explain the ways through which a contract can be dischargedix. Discuss the remedies of a contract

Nature of a Contract

A contract is legally binding agreement where one makes an offer and the other accepts the offer unequivocally/unconditionally. The law of contract is that branch of our civil law which is concerned with the determination of whether or not a promise or set promises is legally binding.

The Essential Elements of Contract

There are seven essentials of valid contract:

(a)There must an offer and acceptance, that is an agreement;(b)There must be an intention to create legal relation;(c) There must be consideration (except for certain contracts

under seal);(d)There is a requirement of written formalities in some cases.

Some contracts can be verbal, but others must be in writing or by deed. Some verbal contracts must be supported by written evidence;

(e)The parties must have capacity to contract. Some persons, e.g. children have limited capacity to make contracts;

(f) There must be genuineness of consent by the parties to terms of the contract. Misrepresentation, mistake, duress, undue influence may invalidate a contract.

(g) Illegality will affect a contract because a contract will be void if it is illegal or contrary to public policy.

In the absence of one or more of the essential elements mentioned above, a contract which arises may be void, voidable or unenforceable. A void contract has no legal effect. The expression “void contract” is a contradiction in terms since if an agreement is void it cannot be contract.

When a contract is voidable the law will allow one of the parties to withdraw from it if he wishes, thus rendering it void. Voidable contracts include some agreements made by minors and contracts induced by misrepresentation, duress or undue influence. A voidable contract remains valid unless and until the innocent party chooses to terminate it.

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An unenforceable contract is a valid contract and any goods or money transferred cannot be recovered, even from the other party to the contract. However if either party refuses to perform his party of contract the other party cannot compel him to do so. A contract will be unenforceable when the required written evidence of its terms is not available e.g. the written evidence for a contract for the sale of land.

Offer

An offer is a definite promise to be bound on certain specific terms. It must not be vague as in Gunthing v Lynn (1831), where the offeror promised to pay a further sum for a horse if it was ‘lucky’. However if an apparently vague offer is capable of being made certain, either by implying terms or by reference to previous dealing between the two parties, or within the trade, then it will be regarded as certain. An offer may be made to a particular person, or class of persons, or to the public at large as in Carlill v Carbolic Smoke Ball Co (1983).

Invitations to Treat

An offer must be carefully distinguished from an invitation to treat, which is an invitation to another person to make an offer. The main distinction between the two is that an offer can be converted into a contract by acceptance, provided the other requirements of a valid contract are present, whereas an invitation to treat cannot be accepted.

Types of Invitation to Treat

(a) The exhibition of goods for sale in a shop. For example Fisher v Bell (1961), also Pharmaceutical Society of Great Britain v Boots Chemists (1953) whereby statute certain drugs had to be sold in the presence of qualified pharmacist. Boots operated a self-service shop, with a qualified pharmacist present at the check-out, but not at the shelves on which the drugs were displayed. The precise location of the place of sale was therefore, relevant to determine whether or not an offence had been committed. It was held that the display was an invitation to treat the customer’s tender of the drugs was the offer and the taking of the money by the pharmacist was the acceptance. The sale therefore, took place at the check-out and Boots therefore did not commit an offence.

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(b) General advertising of goods. Thus a newspaper advertisement that goods are for sale is not an offer. Also in Greinger v Gough (1996) it was held that the circulation of a price list by a wine merchant was only an invitation to treat. In Carlill v Carblic Smokeball Co. (1893), the defendant company manufactured a patent medicine, called ‘smokeball’. In various advertisements they offered to pay £100 to any person who caught influenza after having sniffed the smokeball three times a day for two weeks. They also stated that they had deposited £1,000 in the Alliance Bank in Regent Street to show their’ sincerity’. Mrs. C. used the smokeball as advertised and contracted influenza after more than two weeks treatment and while still using the smokeball. She claimed her £100. The company raised several defences:

I. The advertisement was too vague since it did not state a time limit in which the user had to contract influenza. The court said that it must at least protect the user during the period of use.

II. It was not possible to make an offer to the whole world, to the public at large. The court made a comparison with reward cases and stated that such an offer was possible.

III. An acceptance was not communicated. Not necessary in such cases. A comparison was made with reward cases where no communication is necessary.

IV. The advertisement was a mere gimmick or ‘puff’ and there was no intention to create legal relations. The deposit of £1,000 would indicate to a reasonable man that there was an intention to create legal relations.

V. C provided no consideration. It was held that the actual act of sniffing the smokeball was consideration. (the purchase price was not consideration for a contract with the manufacturer; it was consideration for the contract with the retailer).

(c) An invitation for Tenders

A tender is an estimate submitted in response to a prior request. An invitation for tenders does not generally amount to an offer to employ the person quoting the lowest price. An exception may occur where tenders have been solicited from selected person and the invitation to tender sets out a prescribed clear procedure. In Blackpool and Fylde Aero Club v Blackpool Council (1990) the council, who manage Blackpool Airport, intended to grant a concession to operate pleasure flights from the

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Airport. It sent invitations to tender to P and 6 parties, all of whom were known to the council. The invitation stated that tenders received after the last date would not be considered. P posted their tender in good time in the town hall letter-box, but this was not opened when it was supposed to be, consequently P’s tender arrived late and was excluded from consideration. P sued in contract and negligence. The contract claim was that when inviting tenders the Council promised that it would consider tenders that were received in time. P succeeded, the Court of Appeal holding that it was possible to have exceptions to the rule that invitation to tender was not contractual offers. This would apply where tenders are invited from known and selected persons under a clear prescribed procedure.

(d) An Auctioneer’s request for bids. An advertisement stating that an auction is to be held, or request for bids is an invitation to treat and not an offer to sell to the highest bidder. The bid is the offer and the fall of the auctioneer’s hammer is the acceptance. Until this happens the bidder may retract his bid. A declaration of intention is not an offer intended to form the basis of a contract. A statement that an auction sale will be held is not actionable if a person travels to the place of sale only to find the auction has been cancelld Harrison v. Nickerson (1893).

(e) A Company Prospectus. A prospectus or advertisement inviting the public to subscribe for shares or debentures is an invitation to treat, even if (as is the custom) it is described as ‘an offer for sale’

In some cases it is not absolutely clear what amounts to an offer and what is an invitation to treat, for example: Buses. It is probable the bus itself is the offer (Wilkie v London Transport (1947) , since if the bus were an invitation to treat and the passenger’s tender of the fare an offer, then a passenger could board a bus and, not having seen the conductor, get off again without being in breach of contract.

(g) Mere supply of information

In Harvey v Facey (1893) P telegraphed D

‘Will you sell us Bumper Hall Pen? Telegraph lowest cash price.’ D telegraphed the reply. ‘Lowest price for Bumper Hall Pen £900 and P then

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telegraphed. ‘We agree to buy Bumper Hall Pen for £900. D then decided that he did not wish to sell Bumper Hall Pen to P for £900, and P claimed that a contract had been made, the second telegraph being an offer. The court held that there was no contract the second telegram being merely an indication of what D would sell it for, if and when, he decided to sell. It was supplying of information in response to a question.

Termination of Offer

An offer may be terminated in the following ways:

(a) Revocation, i.e. withdrawal of the offer. Note that:I. A promise to keep an offer for a fixed period does not prevent its

revocation within the period. II. Revocation is ineffective until communicated to the offeree.

Thus revocation by the post is ineffective until it reaches the offeree. However if the offeree must know that the offer has been revoked he cannot accept it, even if he obtained his information through a third party.

In Dickinson v Dodds (1876) D to sell a house to P for £800 and the offer was to be left open until 9 am Friday. On Thursday D sold the house to a Mr. Allan and a Mr. Berry told P of this sale. P nevertheless wrote a letter of acceptance, which he handed to D before Friday 9 am. It was held that there was no contract, the offer having been withdrawn before acceptance and communication by a third party being valid. An offer to sell a particular item is withdrawn by implication if that item is sold to another person.

III Where the offer consists of a promise to pay money for the performance of an act the offer cannot be revoked once performance has commenced. For example if a promise is made to pay K100 million to the first person to swim across Lake Kariba, the offer cannot be revoked once the swim has commenced.

(b) Counter-Offer

I. In Hyde v Wrench (1840) D offered his farm to P for £1,000. P wrote saying he would give £950 for it. D refused this, and P then said he would pay £1,000 after all. D had by now decided that he did not wish to sell P for £1,000. P sued for breach. His

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action failed because his offer of £950 was a counter offer, which terminated D’s offer of £1,000, thus when P purported to accept at £1,000 there was no offer in existence and therefore no contract was formed.

II. A counter offer must be distinguished from a request as to whether or not other terms would be acceptable, since such a request does not, by itself, terminate an offer.

In Stevenson v Mclean (1880) D was offered to sell iron to P for cash. P wrote and asked for 4 months credit. This inquiry was not held to be a counter offer, but a request for information. It did not therefore terminate D’s offer.

(c) Lapse of time: The offer will terminate at the end of the period stated in the offer, or if no period is fixed, it will terminate after a reasonable time. In Ramsgate Victoria Hotel v Montfiore (1866). In June 1864 D offered to take shares in P’s hotel. P did not reply to this offer, but in November he allocated shares to D, which D refused to take. It was held that the refusal was justified, since P’s delay had caused D’s offer to lapse.

(d) Failure of a condition subject to which the offer was made

In Financing Ltd v Stimson (1962) D who wished to purchase a car signed a hire-purchase form on the 16th of March. This was the offer. The form stated that the agreement would only become binding when finance company signed the form.

On 24th of March the car was stolen from the dealer’s premises and it was recovered badly damaged. On the 25th March the finance company signed the form. It was held that D was not bound to take the car. There was an implied condition in D’s offer that the car would be in substantially the same condition when the offer was accepted as when it was made.

(e) Death: The position depends on who dies

I. If the offeree dies the offer lapses

II. If the offeror dies the offer lapses if the offeree knows of the death at the time of his purported acceptance, or if the contract requires personal performance by the offeror, for example paying in an orchestra.

Acceptance

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What Amounts to Acceptance

The acceptance may be in writing or oral, or it may be inferred from conduct, for example by dispatching goods in response to an offer to buy. The acceptance must be unqualified and must correspond to the terms of the offer. Accordingly:

I. A counter offer is insufficient and as stated above, causes the original offer to lapse.

II. A conditional assent is not enough, for example when an offer is ‘accepted ‘subject to contract’.

III. Where it intended to make a contract by means of sealed competitive bids, a submission by one bidder of bid dependant for its definition on the bids of others is invalid.

In Trentham v Architel Luxfer (1993) P the main contractors on a building contract, entered into negotiations with D, who were subcontractors, to supply and install doors and windows. After D had completed the work and been paid, P tried to claim a contribution from D towards a penalty they had incurred under the main contract. D argued that no contract existed because although there had been various telephone calls and letters there was no matching offer and acceptance, nor any agreement as to whose standard terms would govern the contract. The Court of Appeal held that there was a contract, that the approach to the issue of formation should be objective (i.e. does not take account of subjective expectations and unexpressed reservations of the parties) and a precise match of offer and acceptance is not necessarily required where a contract is alleged to have come into existence, as a result of performance. It was also held that where a contract comes into existence, during and as a result of, performance it will often be possible to hold that the contract impliedly and retrospectively covers pre-contractual performance.

The Communication of Acceptance – General Rules

(a) Acceptance is not effective until communicated to and received by the offeror. Thus if an acceptance is not received because of interference on a telephone line, or because the offeree’s words are too indistinct to be heard by the offeror, there is no contract.

(b) Acceptance must be communicated by the offeree or by someone with his authority.

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In Powell v Lee (1908) P applied for the post of headmaster of a school. He was called for interviews and the managers (D being one) passed a resolution appointing him, but they did not make any arrangements for notifying him. However one of the managers without authority informed P that he had been appointed. The managers subsequently re-opened the matter and appointed another candidate. It was held that P failed in his action for breach of contract since acceptance had not been property communicated to him.

(c) The offeror may expressly or impliedly prescribe the method of communicating acceptance, although there will be valid acceptance if the offeree adopts an equally expeditious method, unless the offeror has made it clear that no method will be adequate.

(d) A condition that silence shall constitute acceptance cannot be imposed by the offeror without the offeree’s consent.

In Felthouse v Bindley (1863) P was engaged in negotiations to purchase his nephew’s horse. There was some confusion as to the price so P wrote to his nephew saying:

If I hear no more about him I consider the horse is mine at £30 15s, the horse was at the time in the possession of D, an auctioneer. The nephew wishing to sell at £30 15’s therefore told D not to sell the horse, but D sold the horse by mistake. P therefore sued D in conversion (a tort alleging wrongful disposal of the plaintiff’s property by the defendant) D’s defence was that the horse did not belong to P, since there was no valid contract between P and his nephew, because the condition that silence constituted acceptance was ineffective. The defence succeeded.

(e) Acceptance is not effective if communicated in ignorance of the offer.

(f) There is no contract if two offers, identical in terms cross in the post. For example, A offers to sell his car to B for £500 and B offers to buy A’s car for £500. There is no contract because although there are consenting minds, there is no acceptance.

The Communication of Acceptance – Exceptions

(a) Unilateral contracts: These are contracts where the offer consists of a promise to pay money in return for the performance of an act. However cases performance of the act is sufficient acceptance,

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however consideration is not complete until performance has finished.

(b) Postal rules: Where the parties contemplate acceptance by post, acceptance is complete when the letter is posted, even if the letter is lost in the post.

In Household Fire Insurance Co v Grant (1879) D applied for shares in the company. A letter of allotment (the acceptance) was posted to him, but it never arrived. The company later went into liquidation and D was called upon to pay the amount outstanding on his shares. It was held that he had to do so. There was a contract between the company and himself which was completed when the letter of allotment was posted, regardless of the fact that it was lost in the post.

In Byrne v. Van Tienhoven (1880), the offeror posted a letter of revocation before the offeree posted hi acceptance. Nevertheless, there was a contract, because the acceptance was posted before the revocation arrived. However, it is always possible for the offeror to stipulated that he will not be bound until the acceptance actually reaches him.

Note that:

I. If the letter is lost or delayed in the post because the office has addressed it incorrectly the ‘post rule’ will not apply.

II. ‘Posted’ means put into the control of the post office in the usual manner and not for example, by handling it to a postman.

III. The post rule applies to telegrams, but where communication is instantaneous, e.g. telephone, fax and telex the general rule applies.

In Holwell Securities v Hughes (1974) D granted P an option to purchase land to be exercised ‘by notice in writing’. A letter exercising the option was lost in the post. It was held that the words ‘notice in writing’ meant that the notice must actually be received by the vendor.

Consideration

A promise is only legally binding if it is made in return for another promise or an act (either a positive act or something given up) i.e. if it is part of a bargain. The requirement of ‘something for something’ is called consideration. It may be defined as some benefit accruing to one party, or some detriment suffered the other.

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There have been several case law definitions, for example from Curry v Misa (1875):

‘Some right, interest, profit or benefit accruing to one party, or some forbearance, detriment, loss or responsibility given suffered or undertaken by the other.

Consideration may executory or executed, but it may not be past.

(a) Executory consideration: here the bargain consists of mutual promises. The consideration in support of each promise is the other promise and not a performed (executed) act. For example A orders a green house from B to be paid for when it is delivered next week. There are two promises for the law to enforce. In Shadwell v Shadwell (1850), where a certain man promised to pay his daughter’s boyfriend some money if he married her.

(b) Executed consideration: Here the consideration for the promise is a performed or executed act. For example, fertilizer is ordered and paid for, and it is agreed that delivery will take place within 10 days. If delivery is late the buyer may sue, putting forward his executed act, (i.e. payment) as consideration. Similarly a person who returns a lost dog, having seen an offer or reward may claim the reward. His act of returning the dog is executed consideration. The sequence of events in both examples is first the promise and subsequently the act. Re Casey’s Patents v. Casey, (1892)

(c) Past consideration: If the act put forward as consideration was performed before any promise or reward was made it is not valid consideration. For example, X promises to give Y K100, 000 because Y dug X’s garden last week. Y cannot sue because when X’s promise was made Y’s act was in the past.

In Roscorla v Thomas (1842) P purchased a horse from D. After the sale was complete D gave an undertaking that the horse was not vicious. This proved to be wrong. P sued on this undertaking. He failed since his consideration was in the past.

Consideration must be of Some Value

(a) As long as some value is given the court will not ask whether it is proportionate value to the thing given in return. In other words there is no remedy for someone who makes a bad bargain. In

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Thomas v Thomas (1842) executors agreed to convey the matrimonial home to a widow provided she paid £1 per year rent and kept the house in repair. In action on the promise to convey it was held that the promise of payment and doing the repairs were valuable consideration.

(b) Some acts, although arguably of some value, have been held to be no consideration:

I. Payment on the day that a debt is due of less than the full amount of the debt is not consideration for a promise to release the balance (Pinnel’s Case (1602). However if the creditor agrees to take something different from what he is entitled to, or if payment is made at his request at an earlier date there is sufficient consideration.

In D.C. Builders v Rees (1965) D owed P £482 and knowing that they were in financial trouble offered them £300 in full settlement of the debt. P accepted this cheque, but later sued for the balance of £182. P succeeded because:

- D paid a cheque and the court did not consider this as different from the cash to which P was entitled.

- The payment was made at D’s suggestion and not at P’s request.

- Equitable estoppel was not an available defence for D, because she had attempted to take advantage of P’s financial difficulties and had not therefore come to equity with “clean hands.”

- A promise to do what the promise can already legally demand.

In Stilk v Myrick (1809) P was a seaman who had agreed to work throughout a voyage for £5 per month. During the voyage two crew men out of eleven deserted the ship, and the captain promised to divide their wages between the rests of the crew if they would complete the voyage. One completion of the voyage P requested his share and was refused. His legal action failed on the grounds that he was already contractually bound to complete the voyage and did not therefore provide any consideration for the promise of the deserter’s wages. The principle is that performance of an existing contractual duty is not consideration.

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In contrast with Hartley v Posonby (1857), where 17 out of a crew of 36 deserted. The remainder were promised an extra £40 each to work the ship to Bombay. P, a seaman had to sue to recover his £40. He succeeded, mainly because the large number of desertions made the voyage more dangerous and this had the effect of discharging the original contract. (it was now fundamentally different from the voyage bargained for) this left P free to enter into a new contract under which his promise to complete the voyage constituted consideration for the promise to pay £40. The principle is that performance of an extra contractual duty is good consideration.

III. A promise to discharge a duty imposed by law is not consideartion. In Collins v Godefroy (1831) P was called by subpoena to give evidence in a case involving D. He afterward alleged that D had promised to pay him six guineas for his loss of time.

P failed in his action since he was bound by law to attend the trial (this is the effect of the subpoena) and he did not therefore do anything for D that he was not already bound to do. P therefore had not provided any consideration.

Equitable EstoppelStrict application of the rule in Pinnel’s Case (1602) could cause hardship to a person who relies on a promise that a debt will not be enforced in full. Equitable estoppel mitigates this harshness. It may be expressed as follows:

If X, a party to a legal relationship, promises Y, the other party, that he (X) will not insist on his full rights under that relationship, and this promise is intended to be acted upon by Y, and is in fact acted upon, then X is stopped (stopped because of his own previous conduct) from bringing an action against Y which is inconsistent with his promise, even if Y gives no consideration i.e. Y can use the principle of equitable estoppel as a defense against X if X attempts to enforce his original rights.

In Central London Property Trust v High Trees House (1947) P leased a block of flats to D. Due to the war D was unable to sub-let the flats and so P agreed to accept half rent. 6 month after the

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war P claimed the full rent for the post-war period. This claim succeeded. However the court also considered whether P would have succeeded if he had claimed full rent back to the start of the war. Denning J. ( as he then was), said he would not have been successful because he would have been stopped in equity from going back on his promise.

Intention to create legal relations

Where the parties have not expressly denied an intention to create legal relations, what matter is not what the partied had in their minds, but the inferences that reasonable people would draw from their words or conduct, i.e. it is an objective test. Carlill v Carbolic Smokeball Co (1893). The decision in this case might have been different if there had been no deposit of money to show sincerity.

Commercial Agreements

(a)Agreements ‘subject to contract’ where there is commercial agreement it is presumed that parties intend to create legal relations. However if the parties expressly deny intention by stating that negotiations are ‘subject to contract. Or that any agreement is to be ‘binding in honour only’ then there is no contract.

In Jones v Vernons Pools (1938) P claimed that he had sent D a football coupon on which the draws he had predicted entitled him to dividend. D denied having received the coupon. They relied on a clause printed on a coupon, which states that the transaction should not ‘give rise to any legal relationship … but …be binding in honour’. It was held that this clause was a bar to an action court.

Domestic Agreements(a) Where there is a domestic agreement the presumption is that legal

relations are not intended. For example an agreement by a man to pay his wife £50 per week ‘house keeping’ money. However it is possible for a man to make a binding contract with his wife, for example as part of a separation agreement.

In Merritt v Merritt (1970). A husband left his wife and when pressed by her to make arrangements for the future agreed that if he would pay the outstanding mortgage installments, when all the payments had been made, transfer the house into her name. It was held that there was a binding contract since the presumption that

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legal relations are not intended does not apply if husband and wife are separated or about to separate.

In Balfour v Balfour (1919), Mr. Balfour promised to pay his wife £30 per month if she stayed in England while she was working in Ceylon. Mrs. Balfour was to remain in England for medical reasons. The couple later separated. Mrs. Balfour claimed £30 per month pursuant to Mr. B’s promise. The legal issue in question was whether or not this promise by a husband to his wife amounted to a contract. Held-in its ruling the court considered the view that an agreement to pay £30 per month existed because at the time they were not living in amity.

(b) Where adult members of a family (other than husband and wife) share a household, the financial arrangements which they make may well be intended to have contractual effect.

In Parker v Clarke (1960) a young couple was induced to sell their house and move in with elderly relations by the letter’s promise to leave them a share of the home. It was held that legal effect was intended; otherwise the young couple would not have taken the important step of selling their own home.

(c) An agreement between persons who share a household, but which has nothing to do with the management of the household will probably be intended to be legally binding.

In Simpkins v Pays (1953), three ladies who lived in the same house took part in a fashion competition run by a newspaper. They agreed to send their entries on one coupon and to share any prize money. The court rejected the contention that the agreement to share was not intended to be legally binding sine the contract had nothing to do with the routine management of the house.

Capacity in the Law of Contract

Capacity of both natural and legal persons determines whether they may make binding amendments to their rights, duties and obligations, such as getting married or merging, entering into contracts, making gifts, or writing a valid will. Capacity is an aspect of status and both are defined by a person's personal law:

Infancy

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The definition of an infant or minor varies, each state reflecting local culture and prejudices in defining the age of majority, marriageable age, voting age, etc. In many jurisdictions, legal contracts, in which (at least) one of the contracting parties is a minor, are voidable by the minor. For a minor to undergo medical procedure, consent is determined by the minor's parent(s) or legal guardian(s).

Conversely, many states allow the inexperience of childhood to be an excusing condition to criminal liability and set the age of criminal responsibility to match the local experience of emerging behavioural problems (see doli incapax). For sexual crimes, the age of consent determines the potential liability of adult accused.

Minors and Contractual Capacity

A minor (typically under 18) can disaffirm a contract made, no matter the case. However, the entire contract must be disaffirmed. Depending on the jurisdiction, the minor may be required to return any of the goods still in his possession. Also, barter transactions such as purchasing a retail item in exchange for a cash payment are generally recognized through a legal fiction not to be contracts due to the absence of promises of future action. A minor may not disavow such a trade.Liability - for necessities, (1) the item contracted for must be necessary for minor’s existence, (2) the value must be up to that of the current standard of living or financial/social status (not excessive in value), (3) the minor must not be under the care of a parent/guardian who is required to supply the item. A minor could be held liable for a contract for the purchase of luxury items (those that are not in the financial/social/standard of living range).

Ratification - accepting and giving legal force to an obligation. Express ratification (for a minor) is expressly stating, orally or in writing that he/she intends to be bound by the contract. Implied ratification is when the conduct of the minor is inconsistent with that of disaffirmance or when minor fails to disaffirm an executed contract within a reasonable period.

Generally, the courts base their determination on whether the minor, after reaching the age of majority, has had ample opportunity to consider the nature of the contractual obligations he or she entered into as a minor and the extent to which the adult party to the contract has performed

As one court put it, "the purpose of the infancy doctrine is to protect 'minors from foolishly squandering their wealth through improvident

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contracts with crafty adults who would take advantage of them in the marketplace.'"

The Sale of Goods Act (1979) defines liability of minors when buying necessaries. Necessaries are the basic goods needed for living, The Sale of Goods Acts states, ‘goods suitable to the condition in life of the minor’. Therefore, minors are liable under a contract for buying necessaries. Necessaries extend beyond the essentials for living, they can also be items which are needed for a young person and for their lifestyle. The minor is not liable for goods or services that have not been delivered to them.  Valuable utility items may be considered necessaries but items of luxury are not considered as necessaries. Therefore, a minor would still be liable to pay for such utility items. An example of this was in the case of Chapple v Cooper (1844), where a service was considered necessaries. However, in the case of Nash v Inman (1908), it was decided that waistcoats supplied to a student could have been considered as necessaries, but in this case they were not necessaries because the student’s father had already provided the student with many waistcoats. When something is considered necessaries and the minor liable to pay a reasonable price, this would depend on the income of the minor and whether the goods and services are actually necessaries and are needed by the minor. It would also depend on the supply, even if the minor needed something and can afford it, the good or service would not be considered necessaries if the minor already has a supply of it.

Contracts that are considered for the benefit of the minor are that of service, education, training, apprenticeship and employment. However, the courts will reject a contract if it is considered not in the benefit of a minor. For example, in the case of De Francesco v Barnum (1889), a minor aged 14 years old, had an agreement to train as a dancer on stage, however, the contract had conditions which were considered not beneficial to the minor and therefore, the minor was not bound by the contact.

A case where a contract had been enforced is the case of Doyle v White City Stadium (1935), this is where there was an agreement to train a boxer. There was no money paid, but the contract was enforceable because it was considered that the contract was beneficial because of the training. In another case where the contract was enforceable was in Clements v London & NW Rail Co (1894) where certain benefits were removed from the contract, but the contract was considered to be beneficial.   

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Contracts that can be voided with minors

A ‘voidable contract’ is where a contract can be ended. In this instance, if there is a contract with a minor in a continuous agreement such as payment for renting property. The contract is considered to be valid; however, if the minor rejects the contract before reaching the age of 18 years, this means that the minor can end the agreement in the contract. In the case of Steinberg v Scala (Leeds) Ltd (1923), the contract was voided.

However, in the case of Edwards v Carter (1892) the court decided that the contract could not be rejected and the agreement was enforceable.  

Money paid by minors

If a contract is defective and money is paid by a minor, then usually it cannot be recovered unless it can be proved that the contract has not been beneficial to the minor. In the case of Pearce V Brain (1929), it was decided that the goods were not necessaries and therefore the contract became void, the goods could not be recovered, but money could be recovered.   

The Minors’ Contracts Act 1987

This act was introduced to protect minors, and provide guarantees, when involved in contracts with adults. Section 2 and 3 of the act outline rules with minors and contracts.

In Section 2, a contract would be enforced against the adult where the adult provides a guarantee against the agreement made by the minor.  Therefore, if a minor breaches the contract, the adult would be responsible.

In Section 3, a court can have, for example, non-necessaries, property or property representing it returned, if the minor refuses to pay.

Insanity, mental illness, or mental/medical condition

Drunkenness or drug abuse

Although individuals may have consumed a sufficient quantity of intoxicant or drug to reduce or eliminate their ability to understand exactly what they are doing, such conditions are self-induced and so the law does not generally allow any defence or excuse to be raised to any

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actions taken while incapacitated. The most generous states do permit individuals to repudiate agreements as soon as sober, but the conditions to exercising this right are strict.

Bankruptcy

If individuals find themselves in a situation where they can no longer pay their debts, they lose their status as credit-worthy and become bankrupt. States differ on the means whereby their outstanding liabilities can be treated as discharged and on the precise extent of the limits that are placed on their capacities during this time but, after discharge, they are returned to full capacity. In the United States, some states have spendthrift laws under which an irresponsible spender may be deemed to lack capacity to enter into contracts (in Europe, these are termed prodigality laws) and both sets of laws may be denied extraterritorial effect under public policy as imposing a potentially penal status on the individuals affected.

Enemy aliens and/or terrorists

During times of war or civil strife, a state will limit the ability of its citizens to offer help or assistance in any form to those who are acting against the interests of the state. Hence, all commercial and other contracts with the "enemy", including terrorists, would be considered void or suspended until a cessation of hostilities is agreed.

Business entities

Corporations

The extent of an artificial person's capacity depends on the law of the place of incorporation and the enabling provisions included in the constitutive documents of incorporation. The general rule is that anything not included in the corporation's capacity, whether expressly or by implication, is ultra vires, i.e. "beyond the power" of the corporation, and so may be unenforceable by the corporation, but the rights and interests of innocent third parties dealing with the corporations are usually protected.General and limited partnershipsThere is a clear division between the approach of states to the definition of partnerships. One group of states treats general and limited partnerships as aggregate. In terms of capacity, this means that they are no more than the sum of the natural persons who conduct the business.

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The other group of states allows partnerships to have a separate legal personality which changes the capacity of the "firm" and those who conduct its business and makes such partnerships more like corporations.

Unions

In some states, trade unions have limited capacity unless any contract made relates to union activities.

Insolvency

When a business entity becomes insolvent, an administrator, receiver, or other similar legal functionary may be appointed to determine whether the entity shall continue to trade or be sold so that the creditors may receive all or a proportion of the money owing to them. During this time, the capacity of the entity is limited so that its liabilities are not increased unreasonably and to the detriment of the existing creditors.

The Contents of a Contract - Terms

A contract may contain three types of clauses, namely express terms (other than exemption clauses), implied terms and exemption clauses (which are always expressly agreed).

Express terms

Contract Terms and Representations

A statement may be an express terms of the contract or a representations inducing its formation. The importance of the distinction is that different remedies are available if a term is broken or a representation is untrue. Which it is depends on the intention the parties (objectively assessed). It may be helpful to consider:

(a) The stage of negotiations at which the statement was made. The later it was made the more likely it is to be term.

(b) Where the statement was reduced to writing after it was made. If it was, it is clearly regarded as more important and is therefore probably a term of the contract of the contract.

(c) Whether the maker suggests that the other party should check the statement. If so it is likely to be a representation.

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(d) Whether the maker of the statement possessed special skill and knowledge as compared with the other party.

In Oscar Chess v Williams (1975) D, a private individual, sold to P, car dealers for £280 a car honestly described as a 1948 Morris 10. It was in fact a 1930 model worth £175. The statement that it was a 1948 model was held not to be a term of the contract, since D had himself been sold the car as a 1948 model, being given a forged log book. D thus had no special knowledge as to the age of the car, whereas P, being a dealer was in at least as good a position as D to know whether the statement was true.

Conditions and WarrantiesThere are two basic types of express terms:

I. A condition is a vital term to the root of the contract, breach of which normally entitles the innocent party to treat the contract as at an end (i.e. to repudiate the contract) and to claim damages. In Poussard v Spiers (1876),Madame Poussard was under contract to appear in an operetta for the season. In fact she was unavailable because of illness until 1 week after the season had started. It was held that the obligation to perform from the first night was a condition an d the producers were entitled to terminate Mrs. Poussard’s contract.

II. A warranty is a term which is subsidiary to the main purpose of the contract, breach of which only entitles the innocent party to damages. In Bettini v. Gye (1876), Bettini was under contract to appear in concert for a season. A term of the contract required him to be in London for rehearsals 6 days before the start of the season. On arrival three days late, Gye refused to accept his services. It was held that Bettini’s late arrival was a breach of a warranty so that Gye was himself in breach by terminating Bettini’s contract.

Implied terms

The terms may be implied by custom, the courts or by statute.

Custom

The parties are presumed to have contracted by reference to the customs prevailing the trade or locality in question, unless they have shown a contrary intention. Hutton v Warren (1836), the landlord had given the tenant notice to vacate the premises. At

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the time the notice was supposed to be excuted, the tenet had a crop on the land. The landlord attempted to claim the crop a s part of the land under the long held maxim of quic quid plantatur solo solo credit. It was held that customary usage permitted a farm tenant to claim an allowance for seed and labor on quitting his tenancy.

The Courts

(a) The courts will imply two types of terms into contracts. Firstly terms which are so obvious that the parties must have intended them to be included. These are called terms implied in fact. Secondly terms which are implied to maintain a standard of behaviour, even though the parties may not have intended them to be included. These are called terms implied in law.

(b) Terms implied in fact: the implied term must be both obvious and necessary to give’ business efficiency’ to the contract. The courts will not imply a term merely because it is reasonable to do so. The test is known as the officious bystander; test i.e. if when the parties were making the contract and officious bystander had asked is X a term of the contract? And if he would have received the reply Yes, obviously then the term will be implied.

In The Moorcook (1889) D, who were Wharf owners contracted to allow P to unload their ship at the Wharf. The ship grounded at low water and was damaged by settling on a ridge of hard ground. D were held to be in breach of an implied term that the Wharf was safe.

By Statute

Terms implied in law cover many classes of contract. Thus in contract of employment the employee impliedly undertakes, for example, to do an unlawful act and that he will provide safe premises. Similarly in a tenancy agreement the landlord impliedly agrees not to commit waste.

In Liverpool City Council v Irwin (1977), it was held that where parts of a building have been let to different tenants and where rights of access over the parts of the building retained by the landlord, e.g. the stairs have been granted to these tenants, then a term could be implied that the landlord keep these parts reasonably safe.

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The most well known examples are the terms implied by S.12 – 15 Sale of Goods Act 1893.

I. That the seller has the right to sellII. That in a sale by description the goods shall

correspond with the description.III. That the goods supplied are of quality and fit for the

purpose for which they are required.IV. That where the goods are sold by sample the bulk will

correspond with the sample.

Exemption clauses

An exemption clause is a term in a contract which seeks to exempt one of the parties from liability or which seeks to limit his liability to a specific sum if certain events occur, such as a breach of warranty, negligence, or theft of goods. An exemption clause may become a term of the contract by signature or by notice.

(a) If a person signs a document he is bound by it even if he does not read it.

In Lestrange v Graucob (1934), P, who was the proprietor of a café sales agreement which contained a large amount of ‘small print’. The machine was defective but the vendors were held to be protected by an exemption clause contained in that small print.

(b) A person may not be bound by a signed document if the other party misrepresented its terms.

In Curtis v Chemical Cleaning (1951) P took a white satin wedding dress, trimmed with beads and sequins to the cleaners. The assistant gave her a form to sign and when asked about its contents said that it excluded the company’s liability for damage to the beads and sequins. The plaintiff then signed the form, which in fact contained a clause excluding the company from all liability. When the dress was returned it was badly stained. The company attempted to rely on their exemption clause but it was held that they could not do so since the assistant had misrepresented (albeit innocently) the effect of the form.

(c) Where a document is not signed the exemption clause will only apply if:

I. The party knows of the clause, of ifII. Reasonable steps are taken to bring it to his notice before the

contract is made.

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In Olley v Marlborough Court (1949), P booked in at Ds’ hotel. When she went to her room she saw a notice on the wall stating that the hotel would not be liable for articles lost or stolen unless they were handed in for safe keeping. P left some furs in the bedroom, closed the self-locking door and hung the key on a board I reception. The furs were stolen. It was held that the exemption clause was not effective. The contract was completed at the reception desk. And accordingly a notice in the bedroom came too late to be incorporated into the contract.

(e) The court will not enforce an exemption clause unless the party affected by it was adequately informed of it when he accepted it. Thus the exemption clause must be put forward in a document, which gives reasonable notice of the liability conditions proposed by it.

In Chapelton v Barry UDC (1940) there was a pile of deck chairs and a notice saying ‘hire of chairs 2 d per session of 3 hours. P took two chairs, paid for them and received two tickets. One of the chairs collapsed and he was injured. The council relied on a notice on the back of the tickets by which it disclaimed ‘liability for injury. It was held that the notice advertising chairs for hire gave no warning of limiting conditions and it was not reasonable to communicate them on a receipt. The disclaimer of liability was not effective.

Contrast Thomson v LMS Railway (1930) where an elderly lady who could not read asked her niece to buy her railway excursion ticket on which was printed Excursion. ‘For conditions see back’. On the back it was stated that the ticket was issued subject to conditions contained in the company’s timetables. These conditions excluded liability for injury. It was held that the conditions had been adequately communicated and therefore accepted.

(f) If the parties have had long and consistent dealings on terms incorporating an exemption clause, then the clause may apply to a particular transaction, even if the usual steps to incorporate it were not taken. If there are only a few transactions spread over a long period it would not be reasonable to assume that the person has agreed to the term.

In Hollier v Rumbler Motors (1972), on three or four occasions over a period of five years H had had repairs done at the garage.

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On each occasion he had signed a form by which the garage disclaimed liability for damaged caused by fire to customer’s cars. On the latest occasion he did not sign a form. The car was damaged by fire causes by negligence of garage employees. The garage contended that the disclaimer had course of dealing, became an established term of any contract made between them and H. It was held that the garage was liable. There was insufficient evidence to show that H knew of and agreed to the condition as a continuing term of his contracts with the garage.

Vitiating Factors

These are factors which affect the validity of an otherwise contract.

Mistake

It is the interest of business generally that apparent contracts be enforced.

Thus most mistakes, for example as to the quality of a product, will not affect the

validity of the contract.

Misrepresentation

A misrepresentation is an untrue statement of fact, which is one of the causes which induce the contract.

Fraudulent Misrepresentation

(a) Definition

A statement which is known to be false or made without belief in its truth, or recklessly, not caring whether it is true or false.

In Derry v Peek (1889), a company had power conferred by a special Act of Parliament to run trams by animal power and with Board of Trade consent by steam or mechanical power. The company invited applications for shares from the public and stated in the prospectus that they had power to run trams by steam power. They had assumed that Board of trade permission would be granted, but in the event it was not. As a result the directors were sued for fraud. The court formulated the definition of fraud stated and held the directors were not liable since they honestly believed their statement to be true.

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(b) Remedies

If the innocent party has suffered loss he may claim damages, based on the tort of deceit. In addition he may:

I. Refuse to perform the contract andII. Claim rescission of the contract

Since fraud makes a contract voidable, the innocent party may choose to affirm the contract.

(a) When a contract is voidable, it will generally be valid until the other party is informed of the avoidance. However where the seller has a right to avoid for fraud he does so if, on discovering the fraud, he takes all reasonable steps to recover the goods.

In Car and Universal Finance v Caldwell (1964), a person was induced by fraud to sell his car to a crook. The crook’s cheque was dishonoured and the crook could not be found. Immediately the cheque was dishonoured the former owner informed the police and the Automobile Association, and asked them to find his car. It was held that since he had done all he could in the circumstances, he successfully avoided the contract. It is clearly vital to avoid a contract induced by fraud as soon as possible. Since the fraud makes a contract voidable, (and not valid), if the crook sells the goods to a third party before avoidance he passes a good title and avoidance he cannot pass title, thus the third party to whom he has ‘sold’ must bear the loss.

Innocent Misrepresentation

(a) An innocent misrepresentation is a statement which the maker honestly and reasonably believes to be true. The law on this topic represents an attempt to strike a balance between two innocent parties, the maker of the statement and the person who has been induced to make a contract in complex. This is true of innocent misrepresentation where the rules originate from three sources, common law, equity and statute.

(b) Remedies. The innocent party has no right to damages, but may ask the court to grant the equitable remedy of rescission i.e. restoration to the pre-contract state of affairs.

The remedy of rescission is lost if the representation is later incorporated into the contact.

Negligent Misrepresentation

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(a) A negligent misrepresentation is a false statement made by a person who had no reasonable grounds for believing it to be true.

(b) The innocent party has a right to damages for misrepresentation if he has suffered loss. However if the maker of the statement proves that he had reasonable grounds for believing and in fact did believe, up to the time the contract was made that the facts represented were true, then he has a defence.

(c) The measure of damages is the same a sin a claim for the tort of deceit, i.e. the plaintiff is entitled to be put in the position which he would have been in if the representation had not been made, rather than the position in which he would have been in if the representation

Duress

(a) This is a common law doctrine and its effect if provided is that the contract is voidable. It is limited in scope to illegal violence or threats of violence to the person of the contracting party. To threaten a person’s property is not duress, but to threaten unlawful imprisonment is duress.

In Cumming v Ince (1847) an old lady was threatened with unlawful confinement in a mental home if she did not transfer certain property rights to one of her relatives. The subsequent transfer was aside since the threat of unlawful imprisonment amounted to duress.

Undue Influence

(a) In developing this doctrine equity recognized that consent may be affected by influences other than physical ones. Its effect is to make the contract voidable. The burden of proof of undue influence will depend on the relationship between the parties. If there is no special relationship the party seeking to avoid must prove that he was subjected to influence, which excluded free consent.

In Williams v Bayley (1886) a father agreed to mortgage his property to a bank if the bank if the bank would return to him promissory notes on which his son had forged his signature. The bank had hinted at prosecution and ‘transportation’ of the son if the father did not agree to execute the mortgage. The agreement to execute the mortgage was set aside because undue influence had been proved.

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.

In The Atlantic Baron (1979), the parties reached agreement on the purchase price to be paid for ship. There was then currency devaluation and as a result the vendor claimed 10% increase in price. The purchaser refused to pay. The vendor then stated that if extra was not paid he would terminate the contract and amicable business relations would not continue. Due to this threat the purchaser agreed to increase the price. It was later held that the threat to terminate the contract and discontinue amicable business relations amounted to undue influence. The contract was therefore voidable.

Discharge of a Contract

Discharge of a contract refers to the ways through which parties to a contract can be relieved of their contractual obligations. A contract be discharged in four main ways which are by performance, agreement, frustration and breach. These ways are discussed in detail hereunder.

Performance of the contractThis is the normal method of discharge. Each party fulfils or performs his contractual obligations and the agreement is then ended. As a general rule contractual obligations are discharged only by complete and exact performance. A party who does not perform perfectly is not entitled to claim payment or performance from the other party.

Cutter v Powell (1795)The defendant employed C as second mute of a ship sailing from Jamaica to Liverpool at a wage for the complete voyage of 30 guineas [£1.50]. The voyage began on August and C died at a sea on 20 September, when the ship was still 19 days from Liverpool. C’s widow sued for a proportionate part of the agreed sum. Held: C was entitled to nothing unless he completed the voyage.Bolton v Mahadeva (1972)

The plaintiff agreed to install a central heating system in the defendant’s home for £800. The work was defective: the system did not heat adequately and it gave off fumes. The defendant refused to pay it. Held: the plaintiff could recover nothing.

Performance of a contract for the sale of goods is covered by the Sale of Goods Act 1979/94. It is the duty of the seller to deliver the goods and of the buyer to accept and pay for them, and unless otherwise greed, delivery and payment must take place at the same time. The obligations of the seller include compliance with the

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express and implied terms of the contract, which are difficult to exclude, and with rules regarding the mechanics of delivery which can be varied easily.

In each of these cases the defendant might appear to have profiled to an undue degree, since he obtained part of the plaintiff contracted to deliver without himself having to pay anything. Although these cases be justified on their facts, the courts have developed a number of exceptions to the rule to ensure that the interests of both parties are protected. The exceptions are as follows:

(a) The doctrine of substantial performance(b) Where the promise accepts partial performance(c) Where the promise prevents performance(d) Where time is not of these essence(e) Severable contracts

Substantial performance

The doctrine of substantial performance may be applied, especially in contracts for building work and the like. If the building contractor has completed the essential work and in doing so has completed a very large part of it, he may claim the contract price less a deduction for the minor work outstanding. This may also be regarded as a deduction of damage for breach of warranty when the contract price is paid.

Hoeing v Isaacs (1952), The defendant employed the plaintiff to decorate and furnish his flat at a total price of £750. There were defects in the furniture, which could be put right at a cost of £56. The defendant argued that the plaintiff was only entitled to reasonable remuneration. Held: the defendant must pay the balance owing of the total price of £750 less an allowance of £56, as the plaintiff had substantially completed the contract.

Partial performance

The promise may accept partial performance and must then pay for it. For example, A orders a dozen bottles of bear from B; B delivers ten which is all he has, in stock. A may reject the ten bottles but if he accept them must pay for ten bottles at the appropriate rate.

The principle here is that although the promise has only partially fulfilled his contractual obligations, it may sometimes be possible to infer the existence of a fresh agreement by which it is agreed that payment will be made for work already done or goods already supplied. Mere

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performance by the promisor is not enough; it must be open the promise either to accept or reject the benefit of the contract. Thus in Bolton v Mahadeva above, this could not apply once the heating system had been installed.

Prevention of performance

The promise may prevent performance: In that case the offer (tender) of performance is sufficient discharge. For example, if the buyer will not accept delivery of the contract goods and the seller sues for breach of contract, the seller need only show that he tendered performance by offering to deliver. This will discharge him performance if he can show the other party had a reasonable chance to examine whether performance really was tendered, such as whether goods tendered were those ordered. This is because performance only serves as discharge if it is precise. Where the obligation is to pay money, tender of payment must be followed by payment into court to show a continuing willingness to perform.

If one party is prevented by the other form performing the contract completely he may sue for damages for breach of contract or alternatively, bring a quantum meruit action to claim for the amount of work done.

Planche v Colburn (1831), The plaintiff had agreed to write a book on costumes and armour for the defendant’ ‘Juvenile Library’ series. He was to receive to receive £100 on completion. He did some research and wrote part of the book. The defendant then abandoned the series. Held: the plaintiff was entitled to 50 guineas as reasonable remuneration on a quantum meruit basis.

Valid Reasons for non-performance

Various valid reasons can be used by a party to justify non-performance of his or her obligations:

A new agreement may have been made which replace the existing one

Frustration of the existing agreement may occur because of some outside event for which neither party is responsible, which makes nonsense of thee existing contract.

Serious breach by the other party may sometimes be a valid reason for the injured party to refuse to perform his or her own obligation.

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New agreement

Parties to a contract may reach a mutual agreement to bring a contract to an end. In this way a contract can be said to be discharged as such an agreement terminates the entire transaction. A new agreement may be made which either cancels or replaces the original one. The new contract must be supported by consideration. This form of discharge is sometimes referred to as accord (agreement) and satisfaction (consideration). Where one party has completed his obligations under the contract, her may be difficulties, and there must normally be new consideration to discharge the obligations of the other. One party can release the other without consideration if this is done by deed (of discharge).

Frustration

A contract may validly be discharged, and therefore not performed, if some extraneous event beyond the control of either party destroys the whole basis of the agreement. Contracts have been discharged by frustration in the following circumstances.

Destruction of the subject matter:

In the case which gave rise to the doctrine of frustration, the subject matter of the contract was destroyed before performance fell due.

Taylor v Caldwell (1863), a hall was let to the plaintiff for a series of concerts on specified dates. Before the date of the first concert the hall was accidentally destroyed by fire. The plaintiff sued for owner of the hall for damages for failure to let him have the use of the hall as agreed. Held: destruction of the subject matter rendered the contract impossible to perform and discharged the defendant from his obligations under the contract.

Personal incapacity to perform a contract of personal service:

The principle that a physical thing must be available applies equally to a person, if that person’s presence is a fundamental requirement. Not every illness will discharge a contract of personal service: personal incapacity must be established.

Condor v Barron Knights (1966), the plaintiff aged 16 contracted to perform as a drummer in a pop group. His duties, when the group had work, were to play on every night of the week. He fell ill and his doctor advised that he should restrict his performance to four nights per wee.

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The group terminated his contract. Held: a contract of personal service is based on the assumption that the employee’s health will permit him to perform his duties. If that is not so the contract is discharged by frustration.

At common law, frustration automatically brought the contract to an end. All sums previously paid were recoverable and all sums not yet paid ceased to be due as in the case of Fibrosa v Fairbairn (1942) the plaintiff placed an order for machinery to be delivered in Poland. He paid £1,000 of the contract price of £4,800 with his order. Shortly afterwards the outbreak of the Second World War frustrated sine the German Army occupied Poland. The plaintiff sued to recover the £1,000, which had been paid. Held: the deposit was repayable since the plaintiff had received absolutely nothing for it. There had been a total failure of consideration.

As a consequence, the Law Reform (Frustrated Contracts) Act 1943 was enacted. The general common law rule above was restated, but two qualifications were added to mitigate an inequity. The party who incurred expense before the date of the discharge was allowed to retain all or part of sums already paid by the other party or to recover all or any part of the sums due. If one of the parties has obtained a valuable benefit under the country other than money, then the other party may recover such sum as the court considers just. Excluded from these provisions are contract where parties have provided for frustration, contracts for the carriage of goods, or marine insurance, and for the sale of specific goods which perish before risk has passed to the buyer, this is covered by the Sale of Goods Acts 1979-1994. Force majeure is another way in which a contract may be frustrated.

Breach of Contract

Repudiatory breach

A repudiatory breach occurs where a party indicates either by words or by conduct that he does not honour his contractual obligations. A repudiatory breach is a serious actual breach of contract. It does not automatically discharge the contract; indeed the injured party has a choice.

(a) He can elect to treat the contrast as repudiated by the other, recover damages and treat himself as being discharged from his primary obligations under the contract; this is termination of the contract for repudiatory breach.

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(b) He can elect to affirm the contract.

Repudiatory breach giving rise to a right either or terminate, or to affirm arises in the following circumstances:

(a) Refusal to perform (renunciation). One party renounces his contractual obligations by showing that he has no intention to perform them or to be otherwise bound by the contract. Such refusal may be express or implied: Hochester v De La Tour (1853).

(b) Failure to perform an entire obligation: An entire obligation is said to be one where completed and precise performance of it is a precondition (a condition precedent) of the other party’s performance. Usually partial performance alone is not sufficient (though where the promise agrees a person may recover in respect of partial performance). Thus a contractual condition is often an entire obligation, so failure to perform the acts required by a condition can amount to a repudiatory breach.

Anticipatory breach

Repudiation may be explicit or implicit. A party may break a condition of the contract merely by declaring in advance that he will not perform it when the time for performance arrives, or by some action which makes future performance impossible. The other party may treat this as anticipatory breach and:

(a) may treat the contract as discharged forthwith; or(b) at his option may allow the contract to continue until there is an

actual breach.

Hochester v De La Tour (1853) the defendant engaged the plaintiff as a courier to accompany him on a European tour commencing on 1 June. On 11 May he wrote to the plaintiff to say that he no longer required his services. On 22 May the plaintiff commenced legal proceedings for anticipatory breach of contract. The defendant objected that there was no actionable breach until 1 June. Held: the plaintiff was entitled to sue as a soon as the anticipatory breach occurred on 11 May.

Remedies

A party has a number of remedies when the other party is in breach of contract.

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(a) Damages may be awarded as compensation for loss caused by the breach.

(b) Action for the price is available where the breach is failure to pay

(c) Quantum meruit is payment for the value of what the plaintiff has done

(d) Specific performance is a court order to the defendant to perform the contract

(e) Injunction is a court order for the other party to observe negative restrictions.

Damages and action for the price are common law remedies and are most frequently sought when a remedy is needed for breach of contract, since they arise as of right. A quantum meruit claim is categorized as a claim in quasi-contract. The other type of remedy is equitable remedies, which are only appropriate in specialized circumstances.

Damages

Damages are a common law remedy and are primary to restore the party who has suffered loss to the same position he would have been in if the contract had been performed. They are not meant to be a punishment, which is a criminal, not a civil measure. In addition, they should not allow the party to whom they are awarded to profit, nor achieve a better result than he would have done under the contract: the law will not make up for a bad bargain.

In a claim for damages the first issue is remoteness of damage. Here the courts consider how far down the sequence of cause and effect the consequences of breach should be traced before they become so indirect that they should be ignored, in other words, for what kind of damage will compensation be awarded? Secondly, the court must decide how much money to award in respect of the breach and its relevant consequences.

Remoteness of Damage

Under the rule in Hadley v Baxendale (below) damages may only be awarded in respect of loss as follows:

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(a) I. The loss must arise naturally, according to the usual course of things, from the breach: or

II. The loss must arise in a manner which the parties may reasonably be supposed to have contemplated, in making the contract, as the probable result of the breach of it.

(a) A loss outside the natural course of events will only be compensation if the exceptional circumstances which caused the loss are within the defendant’s knowledge, actual constructive, when he made the contract.

Hadley v Baxendale (1854), the plaintiffs owned a mill at Gloucester which came to a standstill because the main crank shaft had broken. They made a contract with the defendant, a carrier, for the transport of the broken shaft to the makers at Greenwich to serve as a pattern for making a new shaft. Delivery was to be made at Greenwich the following day. Owing to neglect by the defendant delivery was delayed and the mill was out of action for a longer period than would have resulted if there had been no delay. The defendant did not know that the mill would be idle this interval. He was merely aware that he had to transport a broken mill shaft from the plaintiff’s mill.

The plaintiffs claimed for loss of profits of the mill during the period of delay. Held: although the failure of the failure of the carrier to perform the contract promptly was the direct cause of the stoppage of the mill for an unnecessarily long time, the claim must fail since the defendant did not know that the mill would be idle until the new shaft was delivered (apart from (b) of the rule did not apply). Moreover it was not a natural consequence of delay in transport or broken shaft that the mill would be out of action meanwhile (part a) of the rule did not apply). The importance of which the shaft not obvious; the miller might have a spare.

Both parts of are concerned with what the defendant must have known. Under the first head of the rule he is deemed to expect any normal consequences which any other person might also expect; such things are natural and ordinary consequences.

Under the second head, if the consequences of breach for which damages are claimed is abnormal, or what would not

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ordinarily expect, the defendant is liable only if he knew in making the contract of the special circumstances from which the abnormal consequences of breach could arise.

Victoria Laundry (Windsor) v Newman Industries (1949), the defendants contracted to sell a large boiler to the plaintiff ‘for immediate use’ in their business of launderers and dyers. Owing to an accident in dismantling the boiler at its previous site delivery, due on 5 June, was delayed until 8 November. The defendants were aware of the nature of the plaintiffs’ business and had been informed that the plaintiffs were most anxious to put the boiler into use in the shortest possible space of time.

The plaintiffs claimed damages for normal loss of profits of £16 per week for the period of delay and for loss of abnormal profits, assessed at £262 per week, from losing ‘highly lucrative’ dying contracts to be undertaken if the boiler had been delivered on time. Held: damages for loss of normal profits were recoverable since in the circumstances failure to deliver major industrial equipment ordered for immediate use would be expected to prevent operation of the plant. It was a natural consequence covered by the first head of the rule. The claim for loss of special profits fell under the second head of the rule; it failed because the defendant had no knowledge of the dying contracts and the abnormal profits which they would yield.

The judgment is notable for its analysis of the first half of the rule – it is a test of expectation limited to what is foreseeable from knowledge of the ordinary course of things.

In cases of breach of contract, the aggrieved party is only entitled to recover such part of the loss actually resulting as was at the time of the contract reasonably foreseeable as liable to result from the breach. What was at that time reasonably so foreseeable depends on the knowledge then possessed by the parties or, at all events by the party who later commits the breach. For this purpose, knowledge “possessed’ is of two kinds; one imputed, the other actual. Everyone, as a reasonable person is taken to know “ordinary course of things” and consequently what loss is liable to result from a breach of contract in that ordinary course. This is the subject-matter of the “first rule” in Hadley v Baxendale.

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But to this knowledge, which a contract breaker is assumed to possess whether he actually possess it or not, there may have to be added in a particular case knowledge which he actually possessed of special circumstances outside “ordinary things” of such kind that a breach in those special circumstances would be liable to cause more loss. Such a case attracts the operations of the “second rule”, so as to make additional loss also recoverable.

Liquidated damages and Penalty clauses

To avoid complicated calculations of loss or disputes over the amount, the parties may include in their contract a formula (liquidated damages) for determining the damages payable for beach. In construction contracts, for example, it is usual to provide that if the building contractor is in breach of contract late completion, a deduction is to be made from the contract price (1 per cent per week subject to a maximum of 10 per cent in all is s typical example). The formula will be enforced by the courts if it is ‘a genuine pre-estimate of loss’ (without enquiring whether the actual loss is greater or smaller if it appears to be a bargain to settle in advance what is to be paid).

Equitable Remedies

Specific performance

The court may at its discretion give an equitable remedy by ordering the defendant to perform his part of the contract instead of letting him ‘buy himself out of it’ by paying damages for breach. Specific performance will only be ordered in a case where the common law remedy of damages is inadequate. An order will be made for specific performance of a contract for the sale of land since the plaintiff may need the land for a particular purpose and would not be adequately compensated by damages for the loss of his bargain. He could not obtain another piece of land which is identical. For this reason specific performance of contract for sale of goods is unlikely to be ordered unless the contract is one for the sale of land.

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The order will not be made if it would require performance over a period of time and the court not ensure that the defendant comply fully with the order. Therefore specific performance is not ordered for contracts of employment for the sale of land requires only that the vendor should execute and deliver a transfer and other documents: the order is readily enforced.

Injunction

An injunction is (in this context) also a discretionary court order and an equitable remedy, requiring the defendant to observe a negative restriction of a contract. An injunction may be made even to enforce a contract of personal service for which an order of specific order of specific performance would be refused.

Warner Bros Picture Inc v Nelson (1937), The defendant (the firm star Bette Devis) agreed to work for a year for the plaintiffs and not during the year to work for any other film or stage produce nor ‘to engage in any other occupation’ without the consent of the plaintiffs. She came to England during the year to work for a British firm producer.

The plaintiff sued for an injunction to restrain her form this work and she restricted arguing that if the restriction were enforced she must either work for them (indirectly it would be an order for specific performance of a contract for personal service which should be made) or abandon her livelihood. Held: the court would not make an injunction if it would have the result suggested by the defendant. But the plaintiffs merely asked for an injunction to restrain her from working for a British film producer. This was one part of the restriction accepted by under her contract and it was unfair to hold her to it that extent. But the court would not have enforced the ‘any other occupation’ restraint. Moreover, an English court would only have made an injunction restraining the defendant from breaking her contract by taking other work in England. An injunction is limited to enforcement of contract terms, which are in substance negative restraints. It is immaterial that the restraint, if negative in substance, is not so expressed.

Rescission

Strictly speaking the equitable right to rescind and agreement is not a remedy for breach of contract. It is a right, which exists in certain circumstances, such as where a contract is voidable for misrepresentation, duress or undue influence. Rescinding a contract means that it is cancelled or rejected and the parties are restored to their

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pre-contract condition as if it had never been entered into. For this order to be made four conditions must be met.

Limitation to Action for Breach

The right to sue for breach of contract becomes statute-barred after six years from the date on which the cause of action accrued, which is usually the date of the breach, not the date on which damage is suffered: Limitation Act 1939. The period is twelve years if the contract is by deed: s 7. The plaintiff’s rights merely cease to be enforceable at law.

Sample Questions

Mubita and Mwangala are business partners. Mwangala writes to Mubita asking at how much she can sell her car. Mubita replies by stating that:

“I can sell the car at K200,000. If you are interested in buying the car, inform me in two weeks time.”

Mwangala sent the replied by post which only reached Mubita’s office a month later. Unfortunalately, the car had already been sold to Johnson who paid K250,000.

Mwangala has now approached you for legal advice. Advise the parties as to their legal liabilities and the remedies available with reference to decided cases.

References

Beale, H. G. (editor), Chitty on Contracts (London: Sweet and Maxwell, 2004), 2 volumes "General Principles" and "Specific Contracts"

KEITH AND ABBOT, BUSINESS LAW

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ZICA MANUAL, 2012, BUSINESS AND CORPORATE LAW

CHAPTER FOUR

LAW OF TORT

Introduction

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The law of tort represents an important aspect of law. This deals with enjoyment of rights as well respecting other people’s rights. Tort therefore, regulates an area of life that is usually overlooked by many people. This is an area of law under which a person may be liable depending on the circumstances. It may be defamation; trespass; assault; battery; false imprisonment or negligence, but for the sake of this study, our main focus will be on negligence.

Learning Objectives:

By the end of the chapter students must be able to:

i. Define negligence and explain its main elements, making reference to case law

ii. Elaborate the defences and remedies in the law of torts

Tort and wrongs

A tort is a civil wrong and the person wronged sues in a civil court for compensation. A tort can be defined as follows:

‘A wonderful act’. The breach of a duty imposed by law (and not by agreement of the parties) to respect the person or property of others for which an action for damages may be brought.

Wrong and damage distinguished

When a plaintiff sues in tort claiming damages as compensation for loss he must normally prove his loss. But the necessary basis of his claim is that he has suffered a wrong. If there is no wrong (injuria) for which the law gives a remedy, no amount of loss (damum) caused by the defendant can make him liable damnum sine injuria (loss caused by wrong) is not actionable.

Cause and effect

When the plaintiff claims damages for the loss caused by the defendant’s wrongful act or omission, two main issues of cause and effect may have to be considered.

(a) Was the loss caused by the wrongful act or omission of the defendant himself? It may be a case of inevitable accident or there may be contributory negligence on the part of plaintiff.

(b) If the sequence of cause and effect jaws unquestionably began the defendant, how far down the ensuing chain of

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consequences should the court go in identifying the loss for which the plaintiff is entitled to recover damages? In tort (as in contract) it is necessary to have rules on remoteness of damage.

The Tort of Negligence

In the law of tort the concept of negligence appears in two different senses.

(a)There is a distinct tort of negligence, which is (briefly) causing loss by a failure to take reasonable care when there is a duty to do so.

(b)The defendant may not wish to inflict injury but by his carelessness he allows it to happen. The wrong is unintentional but negligent and so the defendant is held to be a fault for the negligent doing of a wrong.

There are some torts of ‘strict liability’ where it need not be shown that the defendant acted intentionally or negligently.

To succeed in action for negligence the plaintiff must prove three things.

(a) The defendant owed him (the plaintiff) a duty of cared to avoid causing injury to person or property.

(b) There was a breach of that duty by the defendant; and(c) In consequence the plaintiff suffered injury or damage or (in

some cases) financial.

Negligence can be defined as follows:

‘This may refer to the way in which an act is carried out, that is carelessly, or to the tort which arises when a person breaks a legal duty of care that is owed to another, thereby causing loss to that other.’

Duty of Care

In the famed case of Donoghue v Stevenson the House of Lords ruled that a person might owe a duty of care to another with whom he had no contractual relationship at all.

Dononghue v Stevenson (1932)

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A purchased from a retailer a bottle of ginger beer for consumption by A’s companion B. The bottle was opaque that its contents were not visible. B drank part of contents of the bottle and topped up her glass with the rest. As she poured it out the remains of a decomposed snail emerged from the bottled. B became seriously ill. She sued C, the manufacturer, who argued that as there was no contract between himself and B he owed her no duty of care and so was not liable to her. Held: C was liable to B. Every person owes a duty of care to his ‘neighbour’ to ‘persons so closely and directly affected by may act that I ought reasonably to have them in contemplation as being so affected. In supplying pollution ginger beer in an opaque bottle the manufacturer must be held to contemplate that the person who drinks the contents of the bottle would be affected by the consequences of the manufacturer’s failure to take care to supply his product in a clean bottle.

The decision in Caparo Industries plc v Dickman and Others 1990 has cast doubt on whether a single general principal of negligence can provide a practical test, which may apply to every situation. In particular, the concepts of foreseability or neighbourhood are little more than convenient labels to attach to different specific situations before the court, which on detailed examination, it recognizes as giving rise to a duty of care. It is likely therefore that, whilst the principles in paragraph 4.2 will continue to underlie the tort of the negligence, categories of negligence will be increased slowly: there will be no massive extension of the concept of duty of care.

Nervous shock

There is duty to take care not to cause nervous shock to a person who one can foresee might suffer in that way from one’s negligence. But the liability is not to everyone who may in fact be affected.

(a) There is a duty of care not to cause nervous shock by putting a person in fear for his own safety or by making him an actual witness to an act of negligence by which he suffers nervous shock, such as seeing his house on fire: Attia v British Gas Plc 1987.

(b) When a person is injured by negligence his relatives who learn of the accident immediately afterwards and suffer shock can recover (there is a duty not to alarm or distress them). Otherwise a person who does not witness the event cannot usually claim that duty of care was owed to him even if he suffers shock as a result.

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McLoughlin v O’brien (1982)

A woman called to a hospital where her husband and three children where receiving emergency treatment shortly after an accident of which she was informed by a witness to it. She suffered nervous shock. Held: there was a duty to her as likely to be affected and so she could recover.

Distinguished from Bourhill v Young (passenger in a tram heard but did not see an accident in the road alongside the tram; she saw the messy consequences afterwards; not within the range of person contemplated as likely to be affected).

(c) A distinction can be drawn between those who witness an event by dint of attending it and those who witness it via a simultaneous television broadcast.

Breach of Duty Care

The standard of reasonable care requires that the person concerned should do what a reasonable man ‘guided upon those considerations which ordinarily regulate the conduct of human affairs’ would do and abstain from doing what a reasonable man would not do. The standard of ‘a reasonable man’ is not that of an average man-for instance, the standard of a ‘reasonable’ car driver is very high standard indeed.

The rule has been developed as follows.

(a) In consideration what precautions should be taken or foresight applied, the test is one of knowledge and general practice existing at the time, not hindsight or subsequent change of practice.

Roe v Minister of Health (1954)

A doctor gave a patient an injection taking normal precautions at that time. The drug was contaminated and the patient became paralyzed. At the time of the trial seven years later medical practice had been improved to avoid the risk of undetected contamination (through an invisible crack in a glass tube). Held; the proper test was normal practice based on the state of medical knowledge at the time. The doctor was not a fault in failing to anticipate later developments.

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Paris v Stepney Borough Council (1951)

P was employed by K on vehicle maintenance. P had already lost the sight of one eye. He was hammering metal. It was not the normal practice to issue protective goggles to men employed on this work since the risk of eye injury was small. A chip of metal flew in to P’s eye and blinded him. Held; Although industrial practice did not require the use of goggles by Workers with normal sight, there was a higher standard of course owed to P because injury to his remaining good eye would blind him. S had failed to maintain a proper standard of care in relation to P.

Res ipsa loquitur

It rests on the plaintiff to show both that the defendant owed him a duty of reasonable care and that the defendant failed in that duty. If the plaintiff does not know how the accident happened it may be difficult to demonstrate that it resulted from failure to take proper care. In some circumstances the plaintiff may argue that the facts speak for themselves (res ipsa loquitur)- that want of care is the only possible explanation for what happened and negligence on the part of the defendant must be presumed.

Res ipsa loquitur can be defined as follows.

The thing speaks for itself. Where an accident happens of which the most likely cause is negligence, for example, where an unattended car runs away, the court may apply this maxim and infer negligence from mere proof of the facts. The burden of proof is then reversed and the defendant and the defendant must prove that he or she was not negligent.’

To rely on this principle the plaintiff must first show that:

(a) the thing which caused the injury was under the management and control of the defendant; and

(b) the accident was such as would not occur if those in control used proper care.

Scott v London & Katharine Docks Co. (1865)

S was passing in front the defendant’s warehouse. Six bags of sugar fell on him. Held: In the absence of explanation it must be presumed of defendants. Principles (a) and (b) above were formulated in this case.

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Consequential harm

A claim for compensation for negligence will not be established if the third element (damage or loss) is not proved. In deciding whether a claim should be allowed, the court considers whether:

(a) the breach of duty gave rise to the harm (fact); and whether(b) the harm was too remote from the breach (law).

A person will only be compensated if he has suffered actual loss, injury, damage or harm as a consequence of another’s actions. The claim will not be proved if:

(a) The plaintiff followed a course of action regardless of the acts of the defendant;

(b) A third party is the actual cause of harm;(c) A complicated series of events takes place such that no one act was

the cause of al the harm; or(d) An intervening act by the plaintiff or a third party breaks the ‘chain

of causation’ (novus actus intervenients).

Having decided whether harm arose from a breach of duty, the court will finally look at whether the harm, which occurred, was reasonably foreseeable; this is the question of remoteness of damage. Novus actus intervenes is a key term and can be defined as follows:

‘A new act intervening: A tortfeaser will be generally liable for all foreseeable loss which follows from his or her wrongful act. If, however, the chain of events is broken by an unforeseeable and independent act of a third party over which the defendant has no control, then the defendant will not be liable for further loss. Thus a person whose negligence caused a road accident will not normally be liable for further injury caused by negligent medical treatment.

Remoteness of damage

When a person commits a tort with the intention of causing loss or harm, which in fact results from the wrongful act, that loss etc can never be too remote a consequence. Damages will be awarded for it.

Scott v Sheppard (1773)

A draw a lighted firework cracker into a crowded market. It landed on B

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Who threw it away and it landed on the stall of C who threw it away and it hit D in the face and blinded him in one eye. D sued A. held: There was no break in the chain of cause from A’s intentional wrongful act and he was liable to D.

Reasonable foresight

If the interviewing act is that of the plaintiff himself and he acts unreasonably, for example, by taking an avoidable and foreseeable risk of injury to himself, that breaks the chain (or if it does not, it may reduces his claim for loss by his contributory negligence).

When there is a sequence of physical cause and effect without human intervention, the ultimate loss is too remote (so that damages cannot be recovered for it) unless it could have been reasonably foreseen that some loss of that kind might occur as a consequence of the wrong.

The Wagon Mound (1961)

A ship (Wagon Mound) was taking on furnace oil in Sydney harbour. By negligence oil was supplied onto the water and drifted to a wharf 200 yards away where welding equipment was spilled onto the was in use in the repair of another ship. The owner of the wharf at first stopped work because of the fire risk but later resumed working because he was advised that sparks from a welding torch were unlikely to set fire to furnace oil. Safety precautions were taken. A spark fell onto a piece of cotton waste floating in the oil and this served as a wick, thereby starting a fire, which caused damage to the wharf. The owners of the wharf sued the charters of the Wagon Mound, basing their claim on an earlier decision that damage caused by a direct and uninterrupted sequence of physical events is never too remote even though it could not reasonably be foresee. Held: the claim must fail. The earlier decision was overruled and the reasonable foresight test laid down. Pollution was the foreseeable risk: fire was not. This was a decision of the Privy Council on appeal from Australian and as such only a persuasive precedent for English courts. But as it was a decision of the most senior English judges it is always applied in cases where claim is negligence.

If the plaintiff suffers avoidable loss because his lack of resources prevents him from taking costly measures to reduce his loss he may still recover damages for it.

Professional Negligence

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There is a duty of care not cause economic loss by negligent misstatement, but the duty exists only where the person who makes the statement foresees that it may be relied on. There must therefore be a special relationship. To establish such a special relationship the person who makes the statement:

(a) Must do so in some professional or expert capacity which makes it likely that others will rely on what he says. This is the position of an accountant providing information or advice in a professional capacity (or indeed any other person ‘professing’ special knowledge, skull and care) but the principle was recently extended to a friendly relationship with business overtones.

(b) Must foresee that is likely to be relied on by another person.

Hedley Byrne v Heller and Partners (1964)HB were advertising for a new client E. if E failed to pay bills for advertising arranged by HB then HB would have to pay the advertising charges. HB through its bank requested information from E’s bank (HP) on the financial position of E. HP returned non-continental replies, which were held to be negligent mis-statement of E’s financial resources. In replying HP expressly disclaimed legal responsibility. Held: there is a duty of care to avoid causing financial loss by negligent mis-statement where there is a ‘special relationship'. HP were guilty of negligence having breached the duty of care but escaped liability by reason of their disclaimer.

The Caparo decision

The case below has made considerable changes to the tort of negligence as a whole and the negligence of professionals in particular.

Caparo Industries plc v Dickman and Others (1990)In March 1984 Caparo Industries purchased 100,000 Fidelity shares in the open market. On 12 June 1984, the date on which the accounts were published, they purchased a further 50,000 shares. Relying on information in the accounts, which showed a profit of £1.3 million, further shares were acquired. On 25 October the plaintiffs announced that they owed or had received acceptances amount to 91.8% of the issued shares and subsequently acquired the balance. Caparo claimed against the

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directors (the brothers Dickman) and the auditors for the fact that the accounts should have shown a loss of £460,000. The plaintiffs argued that the auditors owed a duty of care to investors and potential investors in respect of the audit.

They should have been aware that in March 1986 a press release that profits would fall significantly had made Fidelity vulnerable to a takeover bid and that bidders might well rely upon the accounts. Held: the auditor’s duty did not extend to potential investors or to existing shareholders increasing their stakes. It was a duty owed to the body of shareholders as whole.

In the Caparo case the House of Lords decided that there were two very different situations facing a person giving professional advice.

(a) preparing advice information in the knowledge that a particular person was contemplating a transaction and was expecting to receive the advice or information in order to rely on it to decide whether or not to proceed with the transaction (a special relationship);

(b) preparing a statement (such as an audit report) for more or less general circulation which could forseeably be relied upon by persons unknown to the profession for a variety of different purposes. It was held therefore that a public company’s auditors owed no invest – and, in purchasing additional shares, an existing shareholder was in no different position to the public at large. There was insufficient proximity.

Strict Liability

In many torts the defendant is liable because he acted intentionally or at least negligently. He may escape liability if he shows that he acted with reasonable care. That is essentially the position in the tort of negligence itself. But there are also torts which result from breach of an absolute duty – the defendant is liable even though he took reasonable care. Strict liability can be defined as follows:

‘Whilst liability normally depends upon fault or blame there are certain exceptional instances where this is not required proof of the wrongful act is enough. Such strict liability applies to some criminal offences, for example, applying a false trade description to goods, and some torts, for

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example, breach of certain statutory duties such as the guarding of dangerous machinery.’

The outstanding example of a tort of strict liability is the rule in Rylands v Fletcher.

‘where a person who, for his own purpose brings and keeps on land in his occupation anything likely to do mischief if it escapes, he must keep it in at his peril, and if he fails to do so he is liable for all damage naturally accruing from the escape’

Rylands v Fletcher (1808)F employed competent contractors to construct a reservoir to store water for his mill. In there work the contractors uncovered old mine workings which appeared to be blocked with earth. They did no more to seal them off and it was accepted trial that there was no want of reasonable care on their part. When the reservoir was filled, the water burst through the workings and flooded the mine of R on adjoining land. Held F was liable and the principle quoted above was laid down.

In such cases the occupier of the land is liable even if the escape occurs without negligence or want of care on his part. It has, however, been held in many industrial processes entail the artificial (‘non-natural’) accumulation of water, gas or other materials, which may cause damage if they escape.

Vicarious Liability

The most important application of the principle of vicarious liability is to the relationship of employer and employee. It is often not worthwhile to sue the employee for damages since he is unable to pay them. The employer however has greater resource and may also have insurance cover.

To make the employed liable for a tort of the employee it is necessary that:

(a) there is the relationship between them of employer and employee and;

(b) the employee’s tort is committed in the course of his employment.

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The existence of the employer/employee relationship is usually fairly obvious. It is characterized by such features as a contract of service and the deduction by the employer of PAYEE and national insurance from the employee’s gross pay. However in certain cases it is not clear whether a person is an employee or an independent contractor and the courts have devised certain tests to establish whether the employer/employee relationship exists in such situations. The distinction is important because, if it does not. There is no vicarious liability except in certain special cases.

Defences and Remedies in Tort

A number of defences and remedies are there available to accused person and the aggrieved who can satisfy the courts that their allegations are indeed substantiated.

Defences

There are basically two types of defence in torts. One where, if successfully pledged, would completely exonerate the defendant from liability and others where the defendants blame would have to be reduced because some how the defendant was not wholly responsible for what could have happened or for the damage caused to the plaintiff.

Volenti non fit Injuria (no damage alludes to a volunteer)

A person who volunteers or consents to risk may not succeed in claiming compensation when they suffer injury in the course of events they volunteered/consented to. There, the courts take it that the defendant did not case the injury but the claimant willingly accepted the risk of incurring the damage. Morris v Murray [1991] 2 QB 6 CA, here the plaintiff brought an action against the defendant’s negligence causing injury to him. Both the defendant (a pilot) and plaintiff passenger in defendant’s aeroplane) spent an afternoon drinking alcohol after which the pilot suggested that they go a flight. The aeroplane crushed owing to the negligence of the pilot who himself died in the crush and the passenger was injured. The Court of Appeal held that the passenger has consented to the risk of injury and thus had no action.

Ex Turpi Cawsa Non Oritur action: No action will lie for a disputable or illegal cause:

The Law of Torts somehow had drown principles of equity in determining whether liability should be and therefore compensation be awarded. A

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claimant suffering damage as a result of his own illegal acts, cannot be made to succeed in a claim to be compensated for damage he/she may suffer consequent to that illegal act. In equity the maxim is (he who comes to equity must come with clean hands).

Necessity:

In this defence, where the defendant is not negligent and did not contribute the situation necessitating his/her action, the defendant would be completely exonerated from blame. Necessity allows the defendant to do an act which of itself, is unlawful but with justification that it was necessary for him/her to do the act in order to prevent greater damage from occurring.

Cope v Sharpe (No 2) [1912] 1 KB 496. Here the defendant trespassed on the plaintiff’s land and set it on fire under an honest but mistaken belief that it was the only way to stop the spread of a fire that had started on the plaintiff’s land from spreading to the defendant’s land. The court agreed and did not find defendant liable. The court held that he had acted reasonably at the time although it later transpired that the fire would not spread.

Contributory negligence-Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defendant by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks and equitable having regard to the claimant’s share in the responsibility of the damage.

Novas Actus Intervention: Where causation can not be established due to an intervening act breaking the chain of causation between defendant’s breach of duty and damage to the plaintiff, the courts will not find the defendant liable.

Act of God is another defence which may excuse a person from liability. There are certain occurrences which may happen not as a result of a person’s fault but due to natural calamities. For example, floods, hurricanes, tsunamis. If they occur and cause injury, a defendant mat not be held liable.

Inevitable accident-this refers to accidents which occur even in a situation where the defendant applied the highest standard of care and skill but the accident still occurs. It can be used as defence as no one can stop such a accident from happening as it is due to unforeseen circumstances.

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Statutory authority is another defence . If statute require something to be done which causes injury to another person, the defendant may not be held liable as he or she was acting under statutory authority.

Remedies

Generally, the law imposes a duty either in tort or criminal law. The breach of the duty basically leading to damage would require that the defendant should wither be punished in criminal law or be made to separate the aggrieved so that the aggrieved is taken to where he/she was before the damage has cause.

The reparation or compensation (restitution in intergrieven) should as much as possible take the aggrieved party just to where he/she was before suffering the damage. A number of ways or means are employed for bringing the plaintiff to his/her original position. The means basically for one’s rights being re-organized and granted is what may be considered as remedies.

A remedy is therefore a mechanism for redness of a grievance on a plaintiff. A number of remedies are available to a person who may suffer damage in negligence, strict liability or any other area of Law of Torts.

Among some remedies available are, damages, (general consideration, personal injury remedies), injunction, self-help final word.

Damages: These are the most common forms of remedy available to an aggrieved damages are a common law remedy meaning they are an entitlement as a matter of right not the discretion of the court.

Damages basically arise where a plaintiff can satisfy the court that due to the acts of the defendant, he either incurred costs due to the personal injury or as a result of damage that would be caused to property or otherwise belonging to the plaintiff and damage is caused by the defendant’s negligence.

Damages are always in the form of money to the amount of damage caused by the defendant.

There are basically three types of damages available that the courts would order against the/a defendant known as non compensatory ones!

(a) Exemplary damages: These are awarded to punish a defendant (primitive damages also known.

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(b) Restitutionary damages: are awarded, not to compensate the claimant but to deprive a defendant of an unjust profit; and

(c) Nominal damages: awarded in situations where either the claimant has suffered no recognizable damage or the court of the view that the claimant merits such an award.

Injunction: This is not a common law remedy but very much equitable. Therefore, this remedy is not an entitlement that is, it will only be granted purely at the court’s discretion. A court can therefore refuse to grant an injunction if doing so will be seen as unjust on the other party. The courts will therefore always consider what is just and fair before ordinary an injunction.

Injunctions are mainly available where damages would be insufficient that is, you cannot gratify the damage to be compensated hence, the courts simply orders an injunction which is a prohibition order that is, ordering someone to stop continuing his activity, deformation, harassment and nuisance cases are the ones that mainly attract this remedy.

Self-help: This basically is a remedy available to an aggrieved without necessarily seeking recourse to court. Self-help allows a plaintiff to do an act which may be wrongful but basically to prevent damage from happening to them.

Sample Questions

1. With the aid of decided cases, explain how liability in negligence is established.

2. Outline the main defences and remedies in the law of tort.

3. What are the differences between law of trot, law of contract and criminal law?

References:

Fridman, G.H.L. Introduction to the Canadian Law of Torts, 2d ed. (Markham, Ont.:LexisNexis Butterworths, 2003).

Kerr, Margaret, JoAnn Kurtz and Laurence M. Olivo. Canadian Tort Law in a Nutshell, 2d ed. (Toronto: Thomson Carswell, 2005).

Klar, Lewis N. Remedies in Tort, looseleaf (Toronto: Carswell, 1987)

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ZICA MANUAL, 2012, BUSNIESS AND CORPORATE LAW

CHAPTER FIVE

LAND LAW IN ZAMBIA

Introduction

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Land law is a very important topic in that every life, including human beings need land for survival. Land is the basis for livelihood and is also a factor of production. Unfortunately, land is scarce, but everyone is expected to have a share of land, as no one can own land absolutely. It is for this reason that all land is vested in the President on behalf of the people of Zambia. This chapter is aimed at enlightening the students on various laws regulating land law and it is hoped that this knowledge will assist in their land transactions in future as land disputes are on the increase.

Learning Objectives:

At the end of this chapter students are expected to:

i. Have an understanding of the Zambian and English legal systems governing land law

ii. Be able to compare the Zambian and English legal systems of land law.

iii. Be able to explain the meaning of some land law terminologies such as doctrines of tenure and estates.

Broadly speaking, the law of real property (or land law) is essentially concerned with ownership of land. Land law may be defined as that branch of law which deals with and regulates man’s rights and duties to land and the interest which may be acquired and liabilities which may accrue to man inter se, in relation to the use of land28. According to Dixon, the law of real property is obviously concerned with land, rights in or over land and the processes whereby those rights and interests are created and transferred.29 Riddal has observed that land law is concerned, first, with various aspects of ownership of land and, secondly, with interests in land, and particularly, with the question whether such interests in land are binding on a subsequent holder of the land.30

From the various definitions given above, it comes out clearly that one sphere or aspect of land law is concerned with interests in land. These interests are rights in land held by persons other than the owner. There are various forms of interests or rights in land that can be held by persons other than the owner. These interests include leases, mortgages, easements and profits. The law relating to the various forms of interests in

28 Okon. E “Land Law As An Instrument of Social Change”, ZAMBIA LAW JOURNAL, Volume 17, 1985, p46.29 Dixon, M, land law, Cavendish Publishing Limited, London, 1994, P.1.30 Riddal, J.G, introduction to land law, 4th Ed, Butterworths, London, 1988, p.3.

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land held by persons other than the owner is discussed in various chapters in this book.

With regard to liability, a land owner may be liable in tort if he or she interferes with the legal rights of others. This aspect is covered under Section 2.3.1 of chapter two of this book.

The term ‘real property’ is derived from the old remedy for dispossession of land. Originally, real property was the term applied to any property that was the subject matter of a real action in the common law courts. This applied only to freehold interests in land and was not available to actions relating to leaseholds. The person wrongfully dispossessed of his land could bring a real action i.e claiming the land; in other words the thing (res) itself. On the other hand, a person who was wrongfully dispossessed of his goods or chattels could only bring an action for damages against the person of the wrong doer. The consequence of a personal action, for instance, for dispossession, was that the wrongful dispossessor could either hand back the personal property or pay compensation, whereas with a real action, if a freeholder had been dispossessed wrongly, then possession of the property had to be handed back. In consequence, a distinction was made between real property (or “realty”), which could be specifically recovered and personal property or “personalty” which could not.31

It must be pointed out from the outset that even if we have spoken of an owner of land or ownership of land, “there is, in fact, no such thing as ‘ownership’ of land in an absolute sense or at any rate.”32 In England, according to the doctrine of tenure, all land is owned by the crown and a subject can merely hold land either directly or indirectly of the crown on one or other various forms of tenures. The doctrine of tenure is discussed under section 1.3.1 of this chapter. In Zambia all land is vested in the President who holds it in perpetuity for and on behalf of all the people of Zambia.33 What a person can therefore ‘own’ both in England and Zambia is merely an estate or interest in land of a defined duration.

The learned authors of Megarry’s Manual of The law of Real Property have observed that the objects of learning the Law of Real Property are:-

(a) to acquire a knowledge of the rights and liabilities attached to interests in land; and

31 See generally Megarry and Wade, the law of real property, 4th ed, Sweet and Maxwell, London, 2000, p.5.32 Riddal,J.G, supra note 3 at p.5.33 See Section 3 of the Lands Act, Chapter 184 of the Laws of Zambia.

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(b) to lay a foundation for the study of conveyancing.34

Conveyancing is concerned with how rights in land may be created and transferred. Land law principally deals with the rights and liabilities of land owners. Conveyancing may be defined as a science and art of validly creating, transferring, and extinguishing rights in property, particularly in or over land, by written deeds of various kinds. It is accordingly a major branch of legal work and lawyer’s business. Conveyancing is based on the knowledge of what rights can exist in or over particular kinds of property, of what ends can be secured within the existing rules of law, and of what machinery, such as a vesting order, can appropriately be employed to achieve particular ends. It includes investigation of title and preparation of agreements and other instruments which operate as conveyances.35

Proprietary Nature of Interests or Rights in Land

Proprietary rights in land are interests in land, whether legal interest or equitable interests or mere equities that are ancillary or dependent upon interests in land.36 As to the nature and effects of land rights or interests that may subsist in land, Dixon has observed thus:-

…‘land law rights’ , even if created by a contract, are capable of affecting other people, not simply the parties to the contract. In other words, ‘land law rights’ are capable of attaching to the land itself so that any person who comes into ownership or possession of the land may be entitled to enjoy the rights it gives or be subject to the obligations it imposes. This is the ‘proprietary’ nature of land law rights and it is completely different from the merely ‘personal’ obligations which an ordinary contractual relationship establishes. In fact, one way of describing what land law is about is to say that it is the study of the creation and operation of proprietary rights, being rights which become part of the land and are not personal to the parties that created them.37

34 Hayton, D, megarry’s manual of the law of real property, 6th ed, ELBS, London, 1982, p.1. 35 Walker, D,M, the oxford companion to law, Claredon press, Oxford, 1980, p.287.36 Hayton, D, supra, note 7 at p77.37 Dixon,M, supra, note 2 at p.2.

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Leases, mortgages, easements and profits are examples of proprietary interests or rights that may exist in land or rather held by one person in another person’s land. To create a right over the land of another, that right must (apart from statute), create a burden on the land, i.e an equitable estate or interest in land.38 Before a right or an interest can be admitted into the category of property or of a right affecting property, it must be definable, identifiable by third parties, capable in its nature of assumption by third parties, and have some degree of permanence or stability.39

There are generally two categories of proprietary rights or interests in land. These are estates and interests in land.40 The estates that may subsist in land are discussed under Section 1.3.2 of this chapter. Interests in land can be taken to mean the rights which one person enjoys in the land belonging to someone else. The interest is not a right in one’s own land, but in the ‘estate’ of another person.41 Proprietary interests may be transferred or sold to another person and may be binding against a new owner of the ‘estate’ over which they exist. For example, in Mark Chona v Evergreen Farms Limited,42 the defendant company was bound by a right of way which the plaintiff had exercised on the land for more than 20 years before the defendant company acquired the land or farm through which the right of way was being exercised.

Sources of Land Law in Zambia

The sources of land law in Zambia may be found in statutes enacted by the Zambian legislature, English common law, principles of equity, customary law, English statutes applicable to Zambia by virtue of the English Law [Extent of Application] Act,43 and the British Acts Extension Act44, judicial precedents and writings of eminent authors.

Statutes Enacted by the Zambian Legislature.

38 Per Lord UpJohn in National Provincial Bank V Ainsworth [1952] 2 ALL ER 472 at p.488. 39 Ibid, Per Lord Wilberforce at p.494.40 Dixon,M, supra note 2 at p.4.41 Ibid, page 5.42 1996/HP/2727 (unreported) – The case is excerpted under Chapter 6 dealing with Easements and Profits.43 Chapter 11 of the Laws of Zambia.44 Chapter 10 of the Laws of Zambia.

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The Constitution of Zambia45 is the supreme law of the land. All laws in Zambia are subject to the constitution. Any law that contravenes or is inconsistent with the constitution is null and void.46

In terms of property rights under the constitution, Article 16 provides for protection against deprivation of property. This article may be resorted to in a case where there is a challenge to the President’s powers to, for instance, compulsorily acquire property under the Lands Acquisition Act47. Article 16 of the constitution is discussed under chapter fourteen of this book which deals with compulsory acquisition of property in Zambia.

There are a number of statutes enacted by the Zambian legislature which deal with specific areas or aspects of land law. These statutes include: the Lands Act48; the Lands and Deeds Registry Act49; the Land [Perpetual Succession] Act50; the Agricultural Lands Act51; the Land Survey Act52; the Lands Acquisition Act53; the Landlord and Tenant [Business Premises] Act54; the Housing [Statutory and Improvement Areas] Act55; the Water Act56; the Rent Act57; the Common Leasehold Schemes Act58; and the Town and Country Planning Act,59 and the Trust Restriction Act.60 A number of these statutes are covered or dealt with in this book.

English Common Law

The English Law [Extent of Application] Act61 (whose object, as per its preamble, is to declare the extent to which the law of England applies to Zambia), provides for the application of English common law, doctrines of Equity and certain English statutes.

Section 2 of the Act provides that:-

45 Chapter 1 of The Laws of Zambia.46 See Mumba v The People (1984) ZR 38.47 Chapter 189 of the Laws of Zambia.48 Chapter 184 of the Laws of Zambia.49 Chapter 185 of the Laws of Zambia.50 Chapter 186 of the Laws of Zambia.51 Chapter 187 of the Laws of Zambia.52 Chapter 188 of the Laws of Zambia.53 Chapter 189 of the Laws of Zambia.54 Chapter 193 of the Laws of Zambia.55 Chapter 194 of the Laws of Zambia.56 Chapter 198 of the Laws of Zambia.57 Chapter 206 of the Laws of Zambia.58 Chapter 208 of the Laws of Zambia.59 Chapter 189 of the Laws of Zambia.60 Chapter 63 of the Laws of Zambia.61 Chapter 11 of the Laws of Zambia.

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2. Subject to the provisions of the Constitution of Zambia and to any other written law-

(a) the common law; and

(b) the doctrines of equity; and

(c) the statutes which were in force in England on the 17th

August, 1911 (being the commencement of the Northern

Rhodesia Order in Council, 1911); and

(d) any statutes of later date than that mentioned in paragraph (c) in force in England, now applied to the Republic, or which hereafter shall be applied thereto by any Act or otherwise; and

(e) the Supreme Court Practice Rules of England in force until 1999:

Provided that the Civil Court Practice 1999 (The Green Book) of England or any other civil court practice rules issued after 1999 in England shall not apply to Zambia except in matrimonial causes shall be in force in the Republic.

Hatchard and Ndulo have observed that Chapter 11 of the Laws of Zambia (which at the time of their writing was Chapter 4 of the Laws of Zambia) is vague and unsatisfactory.

They observed thus:-

For a statute of such fundamental significance, Chapter 4 is uncomfortably vague. There is doubt about the significance of the 1911 date, about precisely which pre- 1911 English statutes are applicable, about what the doctrine of equity means and most of all there is doubt about whether it embraces the law as developed in the common law jurisdictions other than England. It is possible to argue that the law referred to can include only English Common Law. The history of the enactment supports this view although past history is increasingly of questionable significance in the circumstances of Zambia. The title of the Act, as well as the

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side notes to it which refer to English Law, supports the view that it refers exclusively to England, although these are not necessarily determinate of the issue. This construction is also favored by the preliminary definition in the Interpretation and General provisions Act (Chapter 2 of the Laws of Zambia), although again there is room for dispute on this point.62

Zambia, being a former colony of England, is a common law jurisdiction. This is supported by the history of the country, as well as by the current statutory guidelines and judicial declarations.63 There are different definitions of the common law. Section 3 of the Interpretation and General Provisions Act64 defines common law as the common Law of England65.

The learned Authors of Megarry’s Manual of the Law of Real Property have observed that the law of Real Property is part of the common law of England and further that the phrase “common law” or “at law” is employed in three senses, viz;

(i) in contrast with local custom;(ii) in contrast with statute law; and(iii) in contrast with equity.66

According to the learned authors, “the third is the most usual sense, the second less, the first comparatively rare; the context will normally make it plain what is meant.”67

The learned authors have further observed that :-

The common law affecting real property has in course of time been profoundly affected by equity, and today most questions on real property law fall for decision in the Chancery Division of the High Court; yet this is merely a procedural arrangement which must not be allowed to obscure the common law basis of the law of real property, though much affected by statute.68

62 Harchard and Ndulo, the law of evidence in zambia, cases and materials, Multimedia Publications, Lusaka, 1985, p.1.63 Church, W.L, “The Common Law And Zambia,” in law in zambia, Ndulo, M, ed, East African Publishing House Ltd, 1984. p164 Chapter 2 of the Laws of Zambia. 65 See Section 3 of Chapter 2 of the Laws of Zambia.66 Hayton, D, supra note 7 at p.2.67 Ibid.68 Ibid at p.3.

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Megarry and Wade have observed, in relation to England, that although the content of the law of real property is increasingly statutory, it is however in no sense a statutory code and therefore that it is still essential to have an understanding of the substratum of common law and equitable principles upon which the statutory framework has been overlaid, together with some grasp of the way in which the subject has developed historically.69 This observation applies with equal force to Zambia. Most of the statutory enactments relating to land in Zambia were adopted from England and/or have their textual roots in the colonial era.

Principles of Equity

Equity may be defined as that body of law or principles that was developed and applied in the Court of Chancery in England, in order to mitigate the harshness of the common law. Certain rights could be enforced in the common law courts and these were known as legal rights. Some rights were not protected by the common law courts, but later came to be protected by the Court of Chancery if it deemed it equitable to do so. These rights were known as equitable rights.70 By the Judicature Act of 1873, the Courts of Law and Equity were fused into one Supreme Court divided into a High Court and Court of Appeal. In spite of the fusion of Courts of Law and Equity, law and equity have still remained distinct.71 It has been observed that it was in the realms of property law that equity made its greatest contribution.72 The intervention of equity will be seen in some of the chapters under part I of this book

Customary Law

The law that existed in Zambia before the advent of colonialism was the (unwritten) indigenous law of the tribes. This is generally referred to as customary law. Customary law has no uniform application in Zambia, but varies from tribe to tribe or locality to locality.73 Customary law may be resorted to in the settlement of disputes involving members of the tribe. As regards land law, customary law as a source of law still plays a vital role in the settlement of land disputes that may arise under land held under customary tenure. The law that generally governs customary tenure in Zambia is the customary land law of the area or district where the land is situate.

69 Megarry and Wade, the law of real property, 4th ed, Sweet and Maxwell, London,2000, p.1.70 Legal and Equitable interests in land are covered under Chapter 8 of this book.71 Hayton, D. supra note 7 at p.61.72 William, H. land law, 3rd Edition, Sweet and Maxwell, London,1994, p.10.73 Ndulo, M. “The Changing Nature of Customary Marriage in Zambia,” in Law in Zambia, Ndulo (ed), East African Publishing House Ltd, 1984, p.143.

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The Lands Act74 recognises customary land law in a number of provisions or sections.75 Customary law is recognized as applicable to the country by virtue of section 16 of the Subordinate Courts Act,76 provided that such customary law is not repugnant to justice, equity or good conscience and is not incompatible, either in terms or by necessary implication, with any written law in Zambia. The Local Courts Act77 does also recognize the application of customary law to any matter before it, in so far as such law is not repugnant to natural justice or morality or incompatible with the provisions of any written law.78

English Statutes

English Statutes Applicable to Zambia by Virtue of the English Law (Extent of Application) Act.The vagueness of the English Law (Extent of application) Act has already been alluded to above under section 1.2.2 of this chapter by way of a critique by Hatchard and Ndulo. The Act is helpful as to which pre 1911 English statutes are applicable to Zambia. Be that as it may, in terms of land law in Zambia, the Statute of Frauds 1677, the Conveyancing and Law of Property Act 1881 – 1911, the Distress for Rent Act 1689, the Law of Distress Amendment Act, 1888, are some of the well known pre - 1911 English statutes that are applicable to the Republic. The Statute of Frauds is covered under Chapter Nine of this book.

In The People v Shamwana and others,79 the High Court (Chirwa J, as he then was) held, inter alia, that the English Law (Extent of application) Act is an enabling Act in that in the absence of any legislation in Zambia on any subject, English statutes passed before 17th August 1911 will apply in Zambia.

Judicial Precedent

74 Chapter 184 of the Laws of Zambia.75 See for instance section 3(4) which provides that the president shall not alienate land situate in a

customary area without taking into consideration the local customary law on land tenure… See

also section 4(1) of the Act and section 3 of The Lands (Customary Tenure) (Conversion) Regulations –

Statutory Instrument No. 89 of 1996.

76 Chapter 28 of The Laws of Zambia.77 Chapter 29 of The Laws of Zambia.78 Section 12 of the Local Courts Act, see the case of Kaniki v Jairus (1967) ZR 71.79 (1982) ZR 122.

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Like most other countries formerly tied to England as colonies or protectorates, Zambia is recognized as a common law Jurisdiction.80 The Common law system is based on the doctrine of judicial precedent or Stare decisis. The doctrine of judicial precedent simply means that the courts do adhere or follow their past judicial decisions.81 Through the system of binding precedent, the courts become a source of law in that in their interpretation of the statutes or laws they create binding judicial precedents.

Under the common law system, the lower courts are bound by the decisions of higher courts. In Kasote v The People,82 the Supreme Court held, inter alia, that:-

(i) the principle of stare decisis is essential to a hierarchical system of courts. Such a system can only work if, when there are two apparently conflicting judgments of the Supreme Court, all lower courts are bound by the latest decision.

(ii) the Supreme Court being the final Court in Zambia adopts the practice of the House of Lords in England concerning previous decisions of its own and will decide first, whether in its view the previous case was wrongly decided and, secondly, if so, whether there is a sufficiently strong reason to decline to follow it.

Text Book Writers

Text books may also be recognized as sources of land law. For example, Megarry’s Manual of the Law of Real Property has been and is widely cited and relied on by both the legal practitioners and the courts not only in England but also in Zambia.

The Two Basic Doctrines of English Land LawThere are two basic doctrines of English Land Law. These are the doctrines of tenure and estate.83 These two basic doctrines of English land law are crucial to the understanding of our land law in Zambia. This is because our land law concepts especially under statutory tenure and indeed a number of statutes are mainly derived from or have their textual root in the English (land) law and/or statutes. The colonial administration brought in English law in the then Northern Rhodesia territory following the advent of colonialism.

80 Church, W.L, “The Common Law and Zambia”, law in Zambia, Ndulo,M, (ed), East African Publishing House Ltd, 1984, at p.1.81 Ibid.82 (1977) ZR 75.83 See generally Hayton, D. megarry’s manual of the law of real property, 6th ed, ELBS, London. pp 23-27.

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The Doctrine of Tenure

The word tenure, from the latin tenere (to hold) implies that land is ‘held’ under certain conditions. From the time of the Norman Conquest in 1066, English land law adopted the continental system of feudalism i.e hierarchy dominated by a sovereign or chief and based on mutual promises of protection and military service.84

William the conqueror (1066 – 87), regarded the whole of England as his by virtue of conquest and granted land not by out and out transfer but to be held of him as overlord. Persons holding land of the crown might then grant land to another (sub infeudate) to hold of him in return for services. The feudal pyramid that was constructed was based upon the land tenure system; the tenure of the land identifying the conditions on which land was held. Tenure was the main bond holding society together, the lord protected those who held land of him. 85

From the time of the Norman conquest, a theory of the common law developed that all land in England was held of the crown and that subjects may hold land directly or indirectly of the crown. According to the doctrine of tenure, all land in England is held of the crown, either directly or indirectly on one or other of the various tenures.86 The excerpt below by Okon87 does ‘summarise’ the development of English land law and its doctrine of tenure from the time of the Norman conquest in 1066 up to the time of the major land law reforms in 192588.

The outstanding feature of the English Land Law, and one which explains many of it’s peculiarities, is that at least from the time of the Norman conquest, it fell into line with the continental systems and became and remained feudalistic. Maitland has tried to paint the picture of what feudalism represents to a lawyer. It is: a state of society in which the main social bond is the relation between Lord and man, a relation implying on the Lords part protection and defense; on the man’s part protection ,service and reverence, the service including service in arms. This personal service or relation is insuperably involved in a proprietory relation, the tenure of land – the man holds of the lord , the man’s service is a burden on the land, the Lord has an important right in the land.

84 William, H. land law, 3rd Edition, Sweet and Maxwell, London, 1994 p.5.85 Ibid.86 Hayton,D, megarry’s manual of the law of real property, 6th ed, ELBS p.24. 87 Okon, E. “Land Law as an Instrument of Social Change,” in ZAMBIA LAW JOURNAL, Volume 15, 1985 at p 46-51.88 Ibid.

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“The system, to say the least, was a negation of liberty. It implied subordi-nation. It meant that one man was inferior to another. Stubbs in his Continental History described the system as:

A graduated system of jurisdiction based on land tenure, in which every lord judged, taxed, and commanded the class next below him ... in which private coinage, private persons took the place of the imperial institutions of government

One of the effects of feudalism in Europe and in England in particular was that from a legal point of view; land became the exclusive bond of union between men. Individual and communal land ownership was destroyed. The ownership of the whole of the land in any given district was vested in the overlords, and the persons who had formerly owned it in their own right now held it of the overlord. In return for the land which they held, they were bound to render services, chiefly of a military nature, to the overlords, while the latter in their turn were bound to protect the tenants. Consequently, there arose a process of "sub-infeudation" which brought about a lot of confusion and complications in land tenure such that it was not easy to know who actually owned the land at any particular time because of the long hierarchy of lords and overlords, tenants and sub-tenants it created.

The Doctrine of EstatesThe doctrine of tenures dealt with the conditions on which land was held. The doctrine of estate is concerned with the length of time for which land is held. The doctrine of estates provides that a subject cannot own land, but can merely own an estate or interest in it, authorising him to hold it for some period of time.89 Tenure answers the question “how is land held?” the estate the question “for how long?”90

Because all land in England is held of the crown, English law has developed the concept of the estate which has its emphasis on the right to possession.91 An estate is an interest in land of defined duration. It is an abstract entity which represents the extent of a person’s rights to possession.92

There are two principal categories of estates, namely, freehold estates and estates less than freehold or leasehold. A freehold estate is one whose duration though fixed is uncertain whereas an estate less than

89 Ibid. 90 Hayton, D, supra note 58, p. 24. 91William, H, land law, 3rd Ed, Sweet and Maxwell, London,1994, p 6.92 Ibid.

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freehold or leasehold is one for a period whose duration is fixed or is capable of being fixed.93

Freehold Estates

There were three estates of freehold at common law, viz; fee simple, fee tail and life estate. All the three estates had one thread in common, namely, that the duration of the estate was fixed though uncertain. In Zambia, English land law and its concepts were ‘imported’ into the Northern Rhodesia territory by the colonial administration. While African customary law regulated land under customary tenure, the land in crown land (which was set aside for white settlements) was regulated by English land law. The interests created in crown land were those known to English law. These are estates and tenures. Estates and tenures could either be freehold or leasehold. Freehold estate (together with leasehold estate) continued to exist in Zambia up to 1975, when by virtue of the Land (Conversion of Titles) Act,94 all freehold estates were converted to a renewable leasehold estate of 100 years effective, 1st July 1975. The freehold estates are briefly discussed below.

Fee Simple Estate

This is the largest estate in terms of duration and is as near to ‘absolute ownership’ as it is possible to achieve.95 The word ‘fee’ denotes inheritability, ‘simple’ indicates that the estate is inheritable by general heirs, i.e. ascendants, descendants or collateral.96 The fee simple is virtually everlasting in that it continues as long as the person entitled for the time being has heirs at his death. The owner of a fee simple estate had, at common law, unfettered power of alienation inter vivos or by will.

Fee Tail

A fee tail estate is an inheritable estate which lasts as long as the original grantee or any of his descendants live.97 The terms ‘fee tail,’ ‘estate tail,’ ‘entail’ or ‘entailed interest’, are often used to describe the same estate. A restriction on the line of descendants to the male or female species only could be created by a ‘fee tail female’ or a ‘fee tail male’.

93 Ibid at p 7.94 Since repealed by the Lands Act of 1995 – The Land Conversion of Titles Act is covered in Chapter 12

of this book.

95 William, H, supra note 59 at p.7.96 Ibid.97 Ibid.

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The fee tail estate existed in Zambia up to 1944, when it was abolished by virtue of an amendment to section 31 of the Lands and Deeds Ordinance (which at independence became an Act). Section 31 (2) of the Lands and Deeds Registry Act98 now provides that:-

From the 1st May, 1944, an estate tail shall cease to exist in Zambia for all purposes, and all land held on an estate tail shall become land held in fee simple by the tenant in tail, and all words in any document after such date purporting to create an estate tail shall be deemed to create an estate in fee simple.

Life Estate

This estate is self explanatory. An estate for life is one limited in its inception to the life of the tenant. It was the grant of an estate to the grantee for his life. The estate subsisted as long as the grantee lived. A life estate is not an estate of inheritance. On the death of the tenant the estate determined and reverted to the overlord.

An estate pur autre vie (for the life of another) was a species of life estate where the right to the estate exists for the duration of someone else’s life. If the duration of the estate was for more lives than one it was often termed ‘a lease for lives.’ A grant of a portion of land ‘to X as long as Y lives’ would create such an estate which terminates on Y’s death.

Section 31(1) of the Lands and Deeds Registry Act provides for tenants for life and tenants in tail. The section provides that :-

(1) A grant of land for a life or lives shall, for the purposes of Parts III to VII, be deemed to be a leasehold held from the person entitled to the reversion or remainder immediately expectant upon the termination or expiration of the life estate created by such grant.

Estates Less Than Freehold (Leasehold or Term of Years)

The leasehold estate or lease, as we know it today, was originally not recognised as an interest in land. The three estates of freehold, discussed above, were the only estates recognised and protected at common law.99 Leaseholds were brought into the estate system in the 16th century by which time they had been recognised as legal estates and were fully

98 Chapter 185 of the Laws of Zambia.99 Hayton, D, supra note 7 p.30.

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protected by the Common law courts.100 Estates less than freehold now comprise various forms of leasehold including101:-

(a)A lease for a fixed term of certain duration e.g. a lease for 3 months, 100 years or 999 years.

(b)A lease the duration of which is capable of being rendered certain e.g. a grant of tenancy to X from year to year.

(c) A lease for an uncertain period of uncertain duration – a tenancy at will – a tenancy at will is a tenancy which may continue indefinitely or may be determined by either party at any time.102

The excerpt below from Maudsley and Burns’ “Land Law - Cases and Materials,” aptly summarises the nature of the two forms of estates discussed above.

Freehold estates, i.e. the estates held by freehold tenure, are those which were in use in the feudal system. In medieval times that system was the basis of the social, military and economic structure of the state: and the holding of freehold land was itself the basis of social position, wealth and power. It was essential for the security of the state and of the social structure that the ownership of freehold estates should be protected; and it is not surprising that the land law was the first of the fields of private law be undertaken by the King's Court'.

The freehold estates are the fee simple, fee tail, life estate and estate pur autre vie. They are freehold because they were recognised by the feudal order, because persons holding such estates in possession were recognized as standing upon a rung in the feudal ladder, and because the remedies available in the King's Court were available to the owner of such an estate and gave a claimant specific recovery. Such estates are “real property” or "realty", and are contrasted with the term of years, a leasehold estate whose owners were never on the feudal ladder; they could not protect themselves by the same actions as the freeholder; their estate as personal property "personalty", passed on intestacy with chattels. A convenient way of distinguishing between freeholds and leaseholds is to note that freeholds are always of indefinite duration,

100 Ibid.101 Ibid at pp. 30 and 31.102 Ibid.

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leaseholds for a fixed period or such as can be made certain. But this is just a label; it does not help to understand the basic gulf between the two, which was so obvious to the medieval lawyer.103

LAND REFORMS IN THE SECOND REPUBLIC

At independence, Zambia retained both the colonial categorization of land, and the two regimes of land tenure. i.e statutory and customary tenures. Even if a Land Commission was appointed shortly after Independence in November 1964 its recommendations, contained in its report of 1967, were not implemented.

Land Reforms Announced By President Kaunda

Among the land reform measures announced by President Kaunda which were to take effect immediately were104:

Farm land-All freehold titles to land and all land held by commercial farmers under freehold title was converted to leasehold of 100 years. Unutilized tracts of farmland were with immediate effect to be taken over by the State.

Land in Residential Areas in Cities and Towns-Freehold titles to land in urban areas were also converted to leasehold for 100 years effective from 1st July 1975. No more undeveloped land in urban areas was to be sold apart from developments on the land. All vacant plots and undeveloped land in and around Lusaka and all other cities and towns were to be taken over by local authorities.

Real Estate Agents-All real estate agencies were closed down. These were identified as largely responsible for inflated prices of land and housing.

Rent Control measures- President Kaunda identified the area of provision of rent as a field where there was extensive exploitation of the common man Individuals were banned from building houses for rent.

The question of accommodation was to be left to the State, with its institutions like the Party, Central Government, Local Government, Parastatal Organisations and Co-operatives. All rented buildings owned by individuals whose value or cost had

been realized were to be taken over by local authorities.

103 Maudsley and Burn’s, land law: cases and materials, 5th Ed, Butterworths, 1986 London, p.120.104 Ibid., pages 43-47.

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Control of Unplanned Townships- Local Authorities were to see to it that no unauthorized buildings were erected within their areas of jurisdiction.

The 1975 land reforms were largely influenced by UNIP’s socialist ideology, the Philosophy of Humanism and President Kaunda’s perception of the African traditional conception of land ownership. Mvunga has observed that the whole tenet of the 1975 reforms hinged on President Kaunda and his Party’s thinking that land must remain the property of the State, a position or premise which in no way departed from the traditional heritage105. In relation to land, UNIP’s conception of land owning, which was based on the ideology of Humanism, was that land was to remain the property of the state.

Land (Conversion of Titles) Act

The preamble to the Act provided that it was an Act to provide for:-

(a) the vesting of all land in Zambia in the President

(b)for the conversion of titles to land(c) for the imposition of restrictions on the extent of agricultural

land holdings(d)for the abolition of sale, transfer and other alienation of land

for value(e)and for matters connected with or incidental to the

foregoing.

Section 4-Vesting Clause – State Ownership of All Land in Zambia

Section 5 – Conversion of Freeholds into Leaseholds

Section 6 of the Act provided for the creation of leasehold by operation of the law

Bare Land - No Value

Section 13 – Presidential Consent for All Transactions or Dealings in Land.

The 1985 Amendments To The Land (Conversion Of Titles) Act - Restriction of Alienation of Land to Non Zambians

(a) If prior Presidential Consent was not obtained for any transaction or dealing in land, the whole contract was unenforceable. 105 Mvunga, M.P, land law and policy in zambia, Gweru: Mambo Press, 1982, p.86.

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In Mutwale V Professional Services Limited106 a landlord sublet a flat without prior presidential consent to a tenant who throughout defaulted in paying rent. When the landlord sued for arrears, the High Court entered judgment for the landlord for the sum claimed, saying that the failure to obtain presidential consent could not nullify the agreement. On appeal to the Supreme Court, it was held that if prior presidential consent was not obtained for a sublease, the whole contract including the provision for payment of rent was unenforceable.

LAND REFORMS IN THE THIRD REPUBLIC

The genesis or background to the 1995 Lands Act107 lies in the Movement for Multiparty Democracy (MMD) Government’s liberal economic policy. In its campaign manifesto of 1990, the MMD promised to liberalize not only the economy but also the land tenure system once in office. The MMD promised to institute a review of the customary system of tenure, while at the same time facilitating the emergence of the private land market.

It has been observed that by ideological commitment, the MMD Government adopted a minimalist approach to intervention in the economy and that in respect to land this meant removing all those obstacles under the 1975 Act that infringed on the right of free alienation.108

Objectives of The Lands Act

From the preamble the primary objectives of the Act are to provide the following:

(a) the continuation of leaseholds and leasehold tenure;(b)the continuation of vesting land in the President and alienation of

land by the President; (c) to provide statutory recognition and continuation of customary

tenure;(d)to provide for the conversion of customary tenure into leasehold

tenure; (e)to establish a land development fund and a lands tribunal; and(f) to repeal the following Acts

(i) The Land (Conversion of Titles) Act,

106 (1984) ZR 72 (SC)

107 Chapter 184 of the Laws of Zambia.108 See Kaunda, M. “Ownership of Property Rights in Land in the First Two Republics of Zambia”: “An Evaluation of Restriction on Free Alienation and some Lessons for the Future”, in Zambia Law Journal, Volume 21-24 at page 73.

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(ii) The Zambia (State lands and Reserves) Order 1924 to 1964

(iii) The Zambia (Trust land) Orders 1947 to 1964

(iv) The Zambia (Gwembe District) Orders 1959 to 1964, and

(v) The Western Province [Land and Miscellaneous] Provisions Act 1970

Vesting Of Land in The President, Powers To Alienate Land And Administration Of

Land.; Conditions on Alienation of Land And Presidential Consent; Customary Holdings to Be Recognised and To Continue; Conversion of Customary Tenure into `Leasehold Tenure; Prohibition of Unauthorised Occupation of Land Renewal of Leases; Re-Entry; The Land Development Fund; Dispute Settlement: The Lands Tribunal.

The political changes that swept through the country in 1991 inevitably led to the changes in the economic policies. Whilst the UNIP Government essentially pursued socialist oriented economic policies, the MMD Government which came to power after the 1991 elections, pursued liberal economic policies. A private sector driven economy where both local and foreign investors would participate was seen as the engine of economic growth.

Under the repealed 1975 Act, the land market was a controlled or regulated one. The economic liberalization pursued by the MMD Government, also entailed the liberalization of the land market or less interference by the State in the land market. This in turn required that all the obstacles to a free land market embedded under the 1975 Act had to be dropped. These obstacles, as pointed out in the preceding chapter, included the notion that bare land had no exchange value, severe restrictions on alienation of land to non-Zambians, and fixing of maximum consideration for various transactions or dealings in land.

The 1995 Lands Act introduced a radical definition of land. Whether bare or virgin, land has value by itself without having regard to human labour or capital expended on it. The notion under the 1975 Act that bare land had no value has been discarded. The conferment of value on bare or virgin land has, however, led to the re-emergence of speculation of bare land especially in urban Areas.

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In terms of classification of land there existed three categories of land under the repealed (Colonial) Orders as augmented by the repealed 1975 Act. The land that previously used to be known as Reserves and Trust land reserves under the repealed Orders is now known as customary area.109 There are therefore now two categories of land, viz: customary area and stateland. The merger of Reserves and Trust land reserves was more than welcome as the colonial divisions or nomenclature were more artificial than real. Infact the merger was overdue. The 1995 Lands Act has continued the practice of vesting land in the President. The President has no beneficial interest whatsoever. The land is merely vested in the Presidency “for and on behalf of the people of Zambia.”

Another controversial aspect of the 1995 Lands Act is in relation to its relaxation of restrictions on the ability of non-Zambians to acquire land. Under the repealed 1975 Act, as amended by Act No. 15 of 1985, there were only four instances under which a non-Zambian could acquire land or an interest in land. The restrictions have been relaxed under the 1995 Act. There are now eleven instances under which a non-Zambian may acquire land or an interest in land.110 It is argued that the main motive behind the enactment of the 1995 Lands Act was to allow for greater access to land by foreign investors. One of the conditions under which a non-Zambian may qualify to own land in Zambia, under section 3 of the Lands Act, is where the non-Zambian has obtained the President’s consent in writing under his own hand. This condition, which was first introduced under the 1985 Amendment to the 1975 Act, has been a source of controversy. The provision granting power to the President to grant land under his own hand has been abused in the past. This provision is a fertile ground for corruption. Kaunda has observed that the decision to grant land to non-Zambians should not be made a prerogative of one man and suggested the creation of a committee (with laid down specific criteria for approving applications for land by non-Zambians) to advise the President in a case where he would want to grant land under his own hand.111 This is a welcome suggestion which would reduce the possibilities of corruption. Another way out is for the complete removal of this provision as it appears not to serve any useful purpose. It is argued that the Commissioner of Lands who is the President’s delegate, should grant land to both Zambians and non- Zambians who qualify under the Act.

The 1995 Lands Act allows for the conversion of customary tenure to leasehold tenure. There is, however, no mechanism or provision under the 109 See definition of Customary Area under section 2 of Chapter 184 of the Laws of Zambia.110 See Section 3(3) a-k of Chapter 184 of the Laws of Zambia.111 Kaunda, M, “Ownership of Property Rights in Land in the First Two Republics of Zambia: An Evaluation of Restriction on Free Alienation and some Lessons for the Future” in Zambia Law Journal, Volume 21-24 p.67.

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Act to allow for conversion of leasehold tenure to customary tenure. There is some perception, harboured by others, that the idea of allowing conversion from customary tenure to leasehold tenure is aimed at getting rid of customary tenure. In terms of conversion of customary tenure into leasehold tenure, the Act requires the consent of the Chief before this can be effected. The Act however does not provide a remedy in a situation where consent is unreasonably withheld by the Chief. Refusal of consent to convert should, it is submitted, be one of the grounds for appeal to the Lands Tribunal which would inquire into the reasonableness or otherwise of the decision to withhold consent.

In relation to Presidential consent, the repealed 1975 Act required Presidential consent in all dealings or transactions in land. In addition, the President was conferred with additional powers to determine the maximum consideration for any transaction. Under the 1995 Lands Act, consent is only required in cases of sale, transfer or assignment. Unlike under the repealed 1975 Act, the President has no powers under the 1995 Act to determine the maximum considerations for transactions or dealings in land. This is an issue which has been left to the parties.

The 1995 Lands Act introduced improvements in the grant of consent by providing time limits for the grant of consent. A further improvement is the requirement that in the event that the President refuses to grant consent he should give reasons for his refusal.112An aggrieved party may appeal to the Lands Tribunal for redress.113

The establishment of a Lands Tribunal under the 1995 Lands Act is a welcome improvement or innovation. There is now an institution in place to deal with disputes arising from the exercise of power by the President under the Lands Act. The Lands Tribunal has a major limitation in relation to its jurisdiction in that it has no jurisdiction to cancel certificate of Titles. This has been seen in some of the cases excerpted under the case law section above.

Effects of government policy on land tenure

Despite the vesting of all land in Zambia in the President, land administration on reserves and trust land is by customary law. However, the President retains the right to make land dispositions in these areas. Individuals wanting to convert their customary land into leaseholds are given 14-year leases. Where survey requirements have been wholly fulfilled, the State grants 99-year leases to Zambians on reserve land.

112 Section 5(3). 113 Section 5(4).

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Employment creation

During colonialism, reserves and trust land became the major source of labour for the industries on Crown land. The resulting exodus of young people left behind mainly old people, women and school-leavers. To ensure continued labour availability, the colonial administration did not develop any rural industries or capacity for entrepreneurship. These trends have continued in post-independence Zambia. Opportunities for wage employment continue to be limited on reserves and trust land because of small farm size, low capital investment, limited incentives, limited entrepreneurship, poor infrastructure and limited availability of services. However, customary tenure makes it possible for all rural people to have work - in the sense of labour - through access to land.

Income generation

Low incomes are generally associated with customary tenure, but they cannot be attributed entirely to the tenure system. They are rather the result of a host of socio-economic, political and historical factors, including the colonial bias against rural areas in the development of infrastructure, industries and essential services, and much slower economic growth on reserves and trust land than on Crown land. Because of the long tradition of rural-urban labour migration, the majority of rural households have historically suffered from labour shortages which constrained their production. Limited access to markets and technology, and controlled prices, especially for maize, further restricted income growth. At present, money transactions account for about 25 percent of all economic activity in reserve and trust land areas, the remainder consisting of subsistence production.

Agricultural productivity

Customary tenure has historically been associated with subsistence farming. The colonial regime did little to change this because it saw the urban and mining economies as the basis of the territory's economic development, with agriculture fulfilling a supporting role by providing a cheap supply of food and labour. Atependence in 1964, the government moved in quickly to redress the imbalance caused by this dualistic approach to agricultural development by reforming services for the communal areas. The measures included the creation of lending institutions, expansion of extension services, development of cooperatives and provision of subsidies on inputs.

Social justice

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The cornerstone of customary land tenure is communal ownership of land resources. Individuals have no right to sell land assigned to them. People have equal access to the resources that nature has provided. Cropland is equitably distributed. Farmers therefore feel secure in the customary tenure system because they enjoy long-term rights to land without fear of dispossession of these rights.

Social cohesion and group solidarity

Customary land tenure is consistent with the African traditional way of life which hinges on strong family ties and lineage control over land. The primary landholding unit under customary law is the family, whose members hold land collectively. On communally owned land, all members of the community are entitled to use a fair share of available resources. Any attempt to replace customary tenure with individualized tenure could disrupt some of the basis of social cohesion.

Environmental considerations

From the onset of colonialism, the British South Africa Company expressed concern over the dangers of shifting cultivation, especially the chitemene system of northern Zambia practised for centuries. Thechitemene system involves the lopping and sometimes felling of indigenous trees and the burning of the cut wood to generate mineral ash for incorporation into the soil. Serious environmental problems are evident under both privatized and customary tenure. Most of the land degradation problems are prevalent in both systems of tenure. However, the level of severity may differ for some problems. For example, acidification resulting from fertilizer use is a problem in both systems of tenure, but chemical land degradation is more severe on State land where commercial farmers invest more heavily in fertilizers.

General welfare at country level

The reserves and trust land comprised areas that were undesirable to the white settler community during the colonial era. They have therefore less potential than State land. Development of infrastructure was much slower than on State land. The majority of the people in trust and reserve areas are still as poor as they were at independence. Whether customary tenure is to blame for this condition is debatable. Customary land tenure is not compatible with business approaches to farming. Farming is taken as an ordinary way of life and not as a business. Little is done to conserve the soils because when their productivity declines, the farmer simply moves to another village and starts again. Despite the constraints, customary

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land tenure has continued to survive because it is a product of the peoples' culture and values and is consistent with the African way of life.

Sample Questions

1. What is land?

2. What are the sources of land law in Zambia?

3. Explain the following terminologies:

(a) Tenure(b) Estate

4. Why is Zambia said to practice a dual legal system in land holding?

5. Account for the land reforms that have taken place in Zambia since the second republic.

References:

Adams, Martin. 2003. Land Tenure Policy and Practice in Zambia: Issues relating to the Development of the Agricultural Sector. Mokoro Ltd. for Department for International Development (DFID).

Adams, Martin and Palmer, Robin. 2007. Independent Review of Land Issues: Eastern and Southern Africa, Volume 3.

Frederick Mudenda, 2005. Land Law in Zambia: Cases and Materials

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CHAPTER SIX

JURISPRUDENCE

Introduction

Jurisprudence is the science of the law. This is a topic that gives a background of the legal system and what it is today. It consists of the thoughts advanced by prominent philosophers such as Aristotle, St. Thomas Aquinas, John Locke, John Austin, Hans Kelsen, Jeremy Bentham, H.L.A. Hart, John Fuller and many others. It helps us understand the basic theories upon which the law was established. This topic is hence helpful in comprehending the foundations of law and it also enhances the understanding of the various components of the law in the contemporary world.

Learning Objectives:

At the end of the chapter a student must be able to:

i. Explain the importance of jurisprudenceii. Write on the ideas advanced by the different philosophersiii. Apply the theories of jurisprudence to actual situations in the

legal system

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The word jurisprudence is derived from a latin maxim as referred 'jurisprudentia' but owes its origin to Rome. It is a combination of two latin words 'juris' which means 'law' and 'prudence' which means 'knowledge' or 'skill'. Therefore jurisprudence is the study, knowledge, skill and theory of law. Jurisprudence includes principles behind law that make the law. Scholars of jurisprudence, also known as jurists or legal theorists (including legal philosophers and social theorists of law), hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions. Modern jurisprudence began in the 18th century and was focused on the first principles of the natural law, civil law, and the law of nations.[1] General jurisprudence can be divided into categories both by the type of question scholars seek to answer and by the theories of jurisprudence, or schools of thought, regarding how those questions are best answered. Contemporary philosophy of law, which deals with general jurisprudence, addresses problems in two rough groups:

1. Problems internal to law and legal systems as such.2. Problems of law as a particular social institution as it relates to the

larger political and social situation in which it exists.

Answers to these questions come from four primary schools of thought in general jurisprudence:

Natural law is the idea that there are rational objective limits to the power of legislative rulers. The foundations of law are accessible through reason and it is from these laws of nature that human-created laws gain whatever force they have.

Legal positivism, by contrast to natural law, holds that there is no necessary connection between law and morality and that the force of law comes from some basic social facts. Legal positivists differ on what those facts are.

Legal realism is a third theory of jurisprudence which argues that the real world practice of law is what determines what law is; the law has the force that it does because of what legislators, barristers and judges do with it. Similar approaches have been developed in many different ways in sociology of law.

Critical legal studies are a younger theory of jurisprudence that has developed since the 1970s. It is primarily a negative thesis that holds that the law is largely contradictory, and can be best analyzed as an expression of the policy goals of the dominant social group.

Also of note is the work of the contemporary philosopher of law Ronald Dworkin who has advocated a constructivist theory of jurisprudence that

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can be characterized as a middle path between natural law theories and positivist theories of general jurisprudence.

A further relatively new field is known as therapeutic jurisprudence, concerned with the impact of legal processes on wellbeing and mental health.

The English word is based on the Latin maxim jurisprudentia: juris is the genitive form of jus meaning "law", and prudentia means "prudence" (also: discretion, foresight, forethought, circumspection; refers to the exercise of good judgment, common sense, and even caution, especially in the conduct of practical matters). The word is first attested in English in 1628, at a time when the word prudence had the now obsolete meaning of "knowledge of or skill in Natural law theory asserts that there are laws that are immanent in nature, to which enacted laws should correspond as closely as possible. This view is frequently summarised by the maxim an unjust law is not a true law, lex iniusta non est lex, in which 'unjust' is defined as contrary to natural law. Natural law is closely associated with morality and, in historically influential versions, with the intentions of God. To oversimplify its concepts somewhat, natural law theory attempts to identify a moral compass to guide the lawmaking power of the state and to promote 'the good'. Notions of an objective moral order, external to human legal systems, underlie natural law. What is right or wrong can vary according to the interests one is focused upon. Natural law is sometimes identified with the maxim that "an unjust law is no law at all", but as John Finnis, the most important of modern natural barristers have argued, this maxim is a poor guide to the classical Thomist position. Strongly related to theories of natural law are classical theories of justice, beginning in the West with Plato’s Republic.

Aristotle

Aristotle is often said to be the father of natural law. Like his philosophical forefathers Socrates and Plato, Aristotle posited the existence of natural justice or natural right (dikaion physikon, δικαίον φυσικόν, Latin is natural). His association with natural law is largely due to the way in which he was interpreted by Thomas Aquinas. This was based on Aquinas' conflation of natural law and natural right, the latter of which Aristotle posits in Book V of the Nicomachean Ethics ( Book IV of the Eudemian Ethics). Aquinas's influence was such as to affect a number of early translations of these passages, though more recent translations render them more literally.

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Aristotle's theory of justice is bound up in his idea of the golden mean. Indeed his treatment of what he calls "political justice" derives from his discussion of "the just" as a moral virtue derived as the mean between opposing vices, just like every other virtue he describes. His longest discussion of his theory of justice occurs in Nicomachean Ethics and begins by asking what sort of mean a just act is. He argues that the term "justice" actually refers to two different but related ideas: general justice and particular justice. When a person's actions are completely virtuous in all matters in relation to others, Aristotle calls her "just" in the sense of "general justice;" as such this idea of justice is more or less coextensive with virtue. "Particular" or "partial justice", by contrast, is the part of "general justice" or the individual virtue that is concerned with treating others equitably. Aristotle moves from this unqualified discussion of justice to a qualified view of political justice, by which he means something close to the subject of modern jurisprudence. Of political justice, Aristotle argues that it is partly derived from nature and partly a matter of convention. This can be taken as a statement that is similar to the views of modern natural law theorists. But it must also be remembered that Aristotle is describing a view of morality, not a system of law, and therefore his remarks as to nature are about the grounding of the morality enacted as law, not the laws themselves. The passage here is silent as to that question.

The best evidence of Aristotle's having thought there was a natural law comes from the Rhetoric, where Aristotle notes that, aside from the "particular" laws that each people has set up for itself, there is a "common" law that is according to nature. The context of this remark, however, suggests only that Aristotle thought that it could be rhetorically advantageous to appeal to such a law, especially when the "particular" law of ones' own city was adverse to the case being made, not that there actually was such a law; Aristotle, moreover, considered two of the three candidates for a universally valid, natural law suggested in this passage to be wrong. Aristotle's theoretical paternity of the natural law tradition is consequently disputed.

Thomas Aquinas

Saint Thomas Aquinas [Thomas of Aquin, or Aquino] (c. 1225 – 7 March 1274) was a philosopher and theologian in the scholastic tradition, known as "Doctor Angelicus, Doctor Universalis". He is the foremost classical proponent of natural theology, and the father of the Thomistic school of philosophy, for a long time the primary philosophical approach of the Roman Catholic Church. The work for which he is best known is the

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Summa Theologica. One of the thirty-five Doctors of the Church, he is considered by many Catholics to be the Church's greatest theologian. Consequently, many institutions of learning have been named after him.

Aquinas distinguished four kinds of law: eternal, natural, human and divine:

Eternal law refers to divine reason, known only to God. It is God's plan for the universe. Man needs this, for without it he would totally lack direction.

Natural law is the "participation" in the eternal law by rational human creatures, and is discovered by reason.

Divine law is revealed in the scriptures and is God's positive law for mankind.

Human law is supported by reason and enacted for the common good.

Natural law, of course, is based on "first principles":

. . . this is the first precept of the law, that good is to be done and promoted, and evil is to be avoided. All other precepts of the natural law are based on this . . .

The desires to live and to procreate are counted by Aquinas among those basic (natural) human values on which all other human values are based.

Legal positivists

Positivism simply means that law is something that is "posited": laws are validly made in accordance with socially accepted rules. The positivist view on law can be seen to cover two broad principles: Firstly, that laws may seek to enforce justice, morality, or any other normative end, but their success or failure in doing so does not determine their validity. Provided a law is properly formed, in accordance with the rules recognized in the society concerned, it is a valid law, regardless of whether it is just by some other standard. Secondly, that law is nothing more than a set of rules to provide order and governance of society. No legal positivist, however, argues that it follows that the law is therefore to be obeyed, no matter what. This is seen as a separate question entirely.

What the law is (lex lata) - is determined by historical social practice (resulting in rules)

What the law ought to be (lex ferenda) - is determined by moral considerations.

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Bentham and Austin

One of the earliest legal positivists was Jeremy Bentham. Bentham was an early and staunch supporter of the utilitarian concept (along with Hume), an avid prison reformer, advocate for democracy, and strongly atheist. Bentham's views about law and jurisprudence were popularized by his student, John Austin. Austin was the first chair of law at the new University of London from 1829. Austin's utilitarian answer to "what is law?" was that law is "commands, backed by threat of sanctions, from a sovereign, to whom people have a habit of obedience". Contemporary legal positivists have long abandoned this view, and have criticised its oversimplification, H. L. A. Hart particularly.

Hans Kelsen

Hans Kelsen is considered one of the prominent jurists of the 20th century and has been highly influential in Europe and Latin America, although less so in common-law countries. His Pure Theory of Law aims to describe law as binding norms while at the same time refusing, itself, to evaluate those norms. That is, 'legal science' is to be separated from 'legal politics'. Central to the Pure Theory of Law is the notion of a 'basic norm (Grundnorm)'—a hypothetical norm, presupposed by the jurist, from which in a hierarchy all 'lower' norms in a legal system, beginning with constitutional law, are understood to derive their authority or 'bindingness'. In this way, Kelsen contends, the bindingness of legal norms, their specifically 'legal' character, can be understood without tracing it ultimately to some suprahuman source such as God, personified Nature or—of great importance in his time—a personified State or Nation.

Utilitarianism

Utilitarianism is the view that the laws should be crafted so as to produce the best consequences for the greatest number of people possible. Historically, utilitarian thinking about law is associated with the great philosopher, Jeremy Bentham. John Stuart Mill was a pupil of Bentham's and was the torch bearer for utilitarian philosophy through the late nineteenth century. In contemporary legal theory, the utilitarian approach is frequently championed by scholars who work in the law and economics tradition.

Sample Questions

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1. What is jurisprudence?

2. Dicuss the natural and positive schools of thought.

3. How was the theory of jurisprudence applied in the case Feliya Kachasu v The Attorney-General.

4. Explain the meaning of the “grund norm” as postulated by Hans Kelsen with reference to the Zambian constitution.

References:

Allen, Sir Carleton Kemp. Law in the Making. 7th ed. Oxford: Oxford University Press, 1964.

Bellomo, Manlio. The Common Legal Past of Europe, 1000–1800. Washington, D.C.: Catholic University of America Press, 1995.

Berman, Harold J. Faith and Order: The Reconciliation of Law and Religion. Atlanta: Scholars Press, 1993.

Law and Revolution: The Formation of the Western Legal Tradition. Cambridge: Harvard University Press, 1983.

Bryce, James Viscount. Studies in History and Jurisprudence. 2 vols. Oxford: Oxford University Press, 1901.

Cairns, Huntingdon. Legal Philosophy from Plato to Hegel. Baltimore: Johns Hopkins University Press, 1949.

CHAPTER SEVEN

Zambia’s Political SystemIntroduction

This is a very interesting topic which seeks to illustrate the development of the political system in Zambia. It highlights the main developments in this area since 1964. It is an important aspect in that it illustrates the fact that even if law forms a integral part of society, it cannot exist on its own but its existence is dependent on other factors such the political system for it to properly function.

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Learning Objectives:

At the end of this chapter students must be able to:

i. Illustrate the key developments in Zambia’s political system since 1964

ii. Explain the relationship between law and politics

The major figure in Zambian politics from 1964 to 1991 was Kenneth Kaunda, who led the fight for independence and successfully bridged the rivalries among the country's various regions and ethnic groups. Kaunda tried to base government on his philosophy of "humanism", which condemned human exploitation and stressed cooperation among people, but not at the expense of the individual.

Kaunda's political party, the United National Independence Party (UNIP), was founded in 1959 and was in power under Kaunda's leadership from 1964 to 1991. Before 1972, Zambia had three significant political parties: UNIP, the Northern Rhodesian African National Congress, and the United Progressive Party (UPP). The ANC drew its strength from western and southern provinces, while the UPP found some support among Bemba speakers in the Copper belt and Northern provinces. Although not strongly supported in all areas of the country, only UNIP had a nationwide following.

One-party state

In February 1972, Zambia became a one-party state, and all other political parties were banned. Kaunda, the sole candidate, was elected president in the 1973 elections. Elections also were held for the National Assembly. Only UNIP members were permitted to run, but these seats were sharply contested. President Kaunda's mandate was renewed in December 1978 and October 1983 in a "yes" or "no" vote on his candidacy. In the 1983 election, more than 60% of those registered participated and gave President Kaunda a 93% "yes" vote.

1991: Move to a multiparty state

Growing opposition to UNIP's monopoly on power led to the rise in 1990 of the Movement for Multiparty Democracy (MMD). The MMD assembled an increasingly impressive group of important Zambians, including prominent UNIP defectors and labor leaders. During the year, President Kaunda agreed to a referendum on the one-party state but, in the face of continued opposition, dropped the referendum and signed a constitutional amendment making Zambia a multi-party state. Zambia's first multi-party

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elections for parliament and the presidency since the 1960s were held on October 31, 1991. MMD candidate Frederick Chiluba resoundingly carried the presidential election over Kenneth Kaunda with 76% of the vote.[2] To add to the MMD landslide, in the parliamentary elections the MMD won 125 of the 150 elected seats and UNIP the remaining 25. However, UNIP swept the Eastern Province, gathering 19 of its seats there.

1991–2001: MMD and Frederick Chiluba

By the end of Chiluba's first term as president (1996), the MMD's commitment to political reform had faded in the face of re-election demands. A number of prominent supporters founded opposing parties. Relying on the MMD's overwhelming majority in parliament, President Chiluba in May 1996 pushed through constitutional amendments that eliminated former President Kaunda and other prominent opposition leaders from the 1996 presidential elections.

In the presidential and parliamentary elections held in November 1996, Chiluba was re-elected, and the MMD won 131 of the 150 seats in the National Assembly. Kaunda's UNIP party boycotted the parliamentary polls to protest the exclusion of its leader from the presidential race, alleging in addition that the outcome of the election had been predetermined due to a faulty voter registration exercise. Despite the UNIP boycott, the elections took place peacefully, and five presidential and more than 600 parliamentary candidates from 11 parties participated. Afterward, however, several opposition parties and non-governmental organizations declared the elections neither free nor fair. As President Chiluba began his second term in 1997, the opposition continued to reject the results of the election amid international efforts to encourage the MMD and the opposition to resolve their differences through dialogue.

Early in 2001, supporters of President Chiluba mounted a campaign to amend the constitution to enable Chiluba to seek a third term of office. Civil society, opposition parties, and many members of the ruling party complimented widespread popular opposition to exert sufficient pressure on Chiluba to force him to back away from any attempt at a third term.

Presidential, parliamentary, and local government elections were held on December 27, 2001. Eleven parties contested the elections. The elections encountered numerous administrative problems. Opposition parties alleged that serious irregularities occurred. Nevertheless, MMD presidential candidate Levy Mwanawasa was declared the victor by a narrow margin, and he was sworn into office on January 2, 2002. Three parties submitted petitions to the High Court, challenging the presidential

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election results. The courts decided that there had been irregularities but that they were not serious enough to have affected the overall result, thus the election result was upheld. Opposition parties won a majority of parliamentary seats in the December, 2001 election, but subsequent by-elections gave the ruling MMD a slim majority in Parliament.

2001–2008

The 2006 presidential election was hotly contested, with Mwanawasa being re-elected by a clear margin over principal challengers Michael Sata of the Patriotic Front and Hakainde Hichilema of the United Party for National Development (UPND).

The parliamentary election that same year awarded MMD with 72 seats, the remaining 84 seats split among other parties with the majority of those seats going to the Patriotic Front.

The presidency of Levy Mwanawasa until his death in office in mid-2008, was different than the flamboyant expenditure and increasingly apparent corruption of the later years of Frederick Chiluba's terms in office. Indeed, the former president was arrested and charged with several counts of embezzlement and corruption, firmly quashing initial fears that President Mwanawasa would turn a blind eye to the allegations of his predecessor's improprieties.

Mwanawasa was accused by some observers of demonstrating an authoritarian streak in early 2004 when his Minister of Home Affairs issued a deportation order to a British citizen and long-time Zambian resident Roy Clarke, who had published a series of satirical attacks on the President in the independent Post newspaper. However, when Clarke appealed to the High Court against the order, the judge ruled that the order was arbitrary and unjustified and quashed the order. President Mwanawasa, true to his mantra of heading a government of laws, respected the court decision and Clarke was allowed to resume his column of satirical critique. Mwanawasa's early zeal to root out corruption also waned somewhat, with key witnesses in the Chiluba trial leaving the country. The Constitutional Review Commission set up by Mwanawasa also hit some turbulence, with arguments as to where its findings should be submitted leading to suspicions that he has been trying to manipulate the outcome. Generally, the Zambian electorate viewed Mwanawasa's rule as a great improvement over Chiluba's.

Following Mwanawasa's death in August 2008, Zambian vice president Rupiah Banda succeeded him to the office of president, to be held as a

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temporary position until the emergency election on October 30, 2008. Banda won by a narrow margin over opposition leader Michael Sata, to complete the remainder of Mwanawasa's term.

2011 elections

Rupiah Banda lost re-election in the 2011 Presidential and Parliamentary elections to Michael Sata of the Patriotic Front bringing an end to a total of 20 years rule by 3 presidents from the MMD.

Edgar Chagwa Lungu 2015 - Present

After being sworn in on the January 25, He has held the office of president after taking over from Guy Scott who was acting president after the passing of defunct president Micheal Chiluyfa Sata. So Far His presidency has been criticised with the depreciating kwacha and his drinking problem.[citation needed]

Executive branch

The executive branch of Zambian government is filled by an elected president. Presidents serve terms of five years and are limited to two terms. The Zambian vice-president is appointed by the president.

The presidency is currently being filled by acting President Guy Scott, who replaces Michael Sata, who suddenly died in office on 28 October 2014.[3]

Scott was chosen by Sata as the country's Vice-President after the latter won the 2011 election against Rupiah Banda who was elected in a presidential by-election on 30 October 2008 following the death of Levy Mwanawasa in 2008.

Guy Scott is the first white president of an African country since Frederik Willem de Klerk of South Africa in 1994. Zambian law stipulates that a new presidential election must be held within 90 days, at the latest on 26 January 2015. It is unclear whether acting President Scott will run for the office. On 25 February Edgar C. Lungu was sworn in as the President sixth elected president, an office which he still holds.

The Relationship between Law and Politics

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The law functions in relation to politics in three basic aspects, namely as a goal, a means, or an obstacle. First, politics can define certain predominantly legal values or institutions as its goal. In this case the political understanding of these values or institutions becomes almost identical to an authentic legal understanding of the same values or institutions. Second, politics can comprehend the law merely as a means for the fulfillment of certain political interests. In this case politics is neutral in its attitude toward the law. Finally, politics can interpret law as an obstacle on the way toward the realization of certain political goals. In this situation either politics prevails over law, or vice versa. In the first case politics effectuates its solutions at the expense of the rule of law, while in the second case the autonomy of law is preserved through the decisions of the highest courts or by other actions taken by lawyers, intellectuals, associations, organizations, and the public in order to stop illicit acts of political actors. Law and politics create their own particular pictures of reality. Sometimes those pictures overlap, sometimes they differ. Yet, there is something that the law should never include in its sphere; namely, the differentiation of adversaries according to a purely political criterion. This leads to a strict separation between "ours" and "yours", or, in its most radical expression, to a strict separation between friend and enemy. When the latter occurs, politics inevitably prevails over the law, and reduces or damages the autonomy of the rule of law.

Sample Questions

1. Account for the brief history of the Zambian political system.

2. What is the relationship between law and politics?

References:

Gann, Lewis H. A History of Northern Rhodesia: Early Days to 1953. London: Chatto and Windus, 1964

Roberts, Andrew. A History of Zambia. New York: Africana, 1976.

Taylor, Scott. Culture and Customs of Zambia. Westport, CT: Greenwood, 2006

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BIBLOGRAPHY

Besa Mulenga, (2011), Democracy and Governance

Burn, B.H. Cheshire’s Modern Real Property .9th ed. London Butterworths,1986

Cerar, Dr. Miro (2009) "The Relationship Between Law and Politics," Annual Survey of International & Comparative Law: Vol. 15: Iss. 1, Article 3.

Chinene, V.R.N., Hansungule, M., Maimbo, F., Mwape, F. & Place, F. 1993. Land and tree legislation, customary tenure and agroforestry practices in Eastern and Southern Provinces of Zambia. Madison, Wisconsin, USA, Land Tenure Center, University of Wisconsin. (Mimeo).

Chitty on Contracts, General Principles, Vol. 1. London: Sweet & Maxwell, 1999Dias, R. W. M. Jurisprudence. 5th edn. London: Butterworths, 1985

Hansungule, M. & Mwansa, T.K. 1993. Land tenure reform in Zambia: another view. Paper presented at the National Conference on Land Policy and Legal Reform, Lusaka, Zambia, 21-22 July.

Fitzgerald, P.J. Salmond on Jurisprudence, 7th edn. London: Sweet & Maxwell, 1966

ZICA Manual, (2012) Business and Corporate Law.

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