PLEADINGS

Pleading is negatively defined in ORDER 1 Rule 4 of The Rules of the Supreme Court
1965 (White Book) RSC 1999 Edition, Volume as

“not including a petition, summons or preliminary act”

Pleadings are of course the written statements of the parties, served by each party in
turn upon the other, which must set out in summary form the material facts or
allegations on which each party relies in support of one’s case or defence as the case
may be.

In this jurisdiction the civil procedure that governs or regulates Pleadings are main the
provisions of ORDER 18 of the White Book.

(a)

(b)

In an action begun by Writ of Summons what are Pleadings:

Pleadings include the following:

(i) Statement of Claim;

(ii) defence;
(iii) reply;
(iv) counterclaim;
(v) defence to counterclaim;
(vi) pleadings subsequent thereto;
(vii) a statement of claim indorsed on a Writ of Summons; and
(viii) particulars of pleadings.
(Further and better particulars of pleadings are not pleadings as such,
although they are characteristics of a pleading for some purposes)

Documents outside the definition of Pleadings:

(i) a general endorsement on a Writ of Summons;

(ii) a petition;
(iii) summons or interlocutory application;
 (iv) an originating summons;
(v) any affidavit or notice of appeal.

Continuation of proceedings began by Originating Summons as if cause or matter was

began by Writ of Summons – and order affidavits to stand as pleadings: ORDER 28/8;
ORDER 28/9/3; ORDER XXI Rule 3 (1) of the High Court Rules, High Court Act,
Chapter 27, Volume 3 of the Laws of Zambia (Repealed by S.I 69 of 1998).
The Object and Function of Pleadings:

(1) To define with clarity and precision the issues or questions which are in dispute
between the parties to be determined by the Court;
(2) To require each party to give fair and proper notice to one’s opponent of the
case one has to meet to enable that person to frame and prepare the case for
trial; and
(3) To inform the Court what precise matters or real issues in controversy between
the parties are which the Court may determined, since they set the limits of the
action which may not be extended without due amendment properly made.

(1) BYRNE V. KANWEKA [1967] ZR 82 where Conroy, CJ (as he then was) held
as follows:

". . . the learned trial judge was striving to do justice between the
parties and to determine the real questions in controversy between them.
He was not helped in this task by the pleadings. It was in his discretion as
to whether he should amend the pleadings, as he did, and I cannot say
that he exercised that discretion incorrectly.

Paragraph 9 of the Statement of Claim makes a double claim -

special damages for innocent misrepresentation and general damages for
breach of contract. As the former were irrecoverable as pleaded and as the
plaintiff had fought his whole case on breach of contract, the learned trial
judge was really bringing the pleadings into line with the actual issues
contested and decided, and was, as he said, amending for the purpose of
'clearing the record'. He was basing both claims on breach of contract. It is
the duty of a court to ensure that its records are complete. If a case is
decided on a re-casting of the issues as originally pleaded, the pleadings
should be amended in fact...."

In the course of my judgment in that case I referred to the fact that the
amendments made by the learned trial judge introduced no new matter
and no new cause of action. I continued:

"All they did was to adjust the pleadings so that they conformed
with the case which had been presented and contested before him. In my
view he was not only justified in doing so, but in view of the mandatory
terms of the last part of Order XVI rule 1 of the High Court Rules, obliged to
take this course."

Earlier I had referred to the Court's power to amend and stated that:

"The Court can and indeed must amend of its own motion, when the
requisite conditions obtain."

I adhere to these observations. Primarily, the court's power to amend of its

own motion is discretionary. But it becomes obligatory, and
understandably so, where amendment is necessary to ensure a fair trial or
to identify the real question or questions in controversy between the
parties.

Normally the questions in controversy between the parties are those

specifically raised in the pleadings and no others. But I apprehend that87
there might be a defect or deficiency in the pleadings which, if not
corrected, might impede the resolution of the real question or questions in
controversy between the parties; or, again, as the case proceeds, it might
become apparent that the real issues which it involved had not been
raised in the pleadings. This last was what happened in the Puzey & Diss
case. The pleadings were badly drawn and the case as conducted
disclosed that the real issue between the parties was one which had not
been pleaded.

In either of the examples which I have cited I think amendment of the

pleadings would be essential. But the instant case does not fit into either
category. I entirely agree with Mr Loe's submission that the appellant's
complaint as disclosed in his Statement of Claim was in regard to
negligence by the respondent on the day the original plaster was removed
and replaced and no later. It is true that by his defence the respondent
alleged contributory negligence by the appellant on occasions subsequent
to that day, but this made no difference to the scope of the appellant's
complaint. It is true, also, that evidence was received from the two
surgeons who were called relating to the advisability of taking subsequent
X-rays, and that there was also evidence, most of it from the respondent
himself, regarding the fitting of the walking plaster and the reasons
therefore. The emergence of this evidence, however, did not automatically
create new questions in controversy between the parties and it would be n
absurd construction of the provisions of the High Court Rules, Order 16,
rule 1, which would do violence to the whole concept of pleadings to say
that the court was bound of its own motion to amend the pleadings simply
because it had transpired from evidence adduced in the course of the
hearing that the parties night have pleaded other issues. Fundamentally,
of course, parties are bound by their pleadings and evidence outside the
pleadings would ordinarily be excluded as inadmissible.

It is, naturally, always open to a party to apply for leave to amend his
pleadings and he will be granted leave to do so in a proper case. I do not
think it is necessary for me to repeat here the principles under which the
Court will entertain such an application. They are well summarised in
paragraphs 205-86 of the Notes to the Rules of the Supreme Court, Order
20, rules 5-8, under the rubric "General Principles for Grant of Leave to
Amend" on page 300 of the 1967 Supreme Court Practice.
 But in the instant case the appellant's counsel below made no application
to amend, although given every opportunity to do so. I would not say he
was necessarily wrong in taking that attitude.

For the reasons I have given I am satisfied the learned trial judge was
under no obligation to make any amendment to the appellant's Statement
of Claim.

There remains Mr Mitchley's application to amend the appellant's

particulars of negligence by the addition of the two further particulars of
negligence. I do not think that should be granted for several reasons: first,
because if there was any real substance in these allegations - and the
appellant's counsel below was in a position to know this - they could
and88 should have been pleaded originally; secondly, because even if
their significance - for what it was worth - was not apparent before trial it
certainly became apparent during the trial and the application should
haste been made then; thirdly, because as these new issues were neither
pleaded nor properly canvassed in the court below, the respondent would
also have to be allowed to amend his pleadings and further evidence
would have to be called, all of which could not really be satisfactorily
achieved without ordering a new trial; fourthly, because I think that to
grant such an application, with all its attendant complications and delays,
at this late stage in the history of the matter, would do an injustice to the
respondent for which he could not be adequately compensated in costs.

Having come to these conclusions there is no need for me to consider the

question of damages. I would dismiss this appeal.
(2) KAWIMBE V. ATTORNEY – GENERAL [1974] ZR 244

When the matter came before the Deputy Registrar the plaintiff was
not in attendance. The plaintiff's advocate decided to proceed
 without him and to rely purely on the pleadings and submissions.
The Deputy Registrar, consequently, was in the position-and we of
course are in the same position-that we know nothing of what, if
any mental distress was suffered by the plaintiff, what were the
consequences if any in this particular case of the deprivation of
liberty, or indeed anything save that he was unlawfully deprived of
his liberty by being detained in a prison. It is not entirely irrelevant
to comment in passing that we have this last piece of information
only as a matter of legal presumption; it was not pleaded. However,
legally a person may not be detained under the Preservation of
Public Security Regulations save in one of certain specified prisons
and we must, therefore, assume that the plaintiff was so detained.
The Deputy Registrar, having pointed out that no special damages
were proved ad that the decision was concerned purely with
general damages, proceeded to award the plaintiff a sum of K25 in
respect of each day, namely a total of K50. The plaintiff now
appeals against this award on the ground that it is insufficient
having regard to the period of detention and the conditions under
which the plaintiff was detained.

(3) LYONS BROOKE BOND (ZAMBIA) LIMITED V. ZAMBIA TANZANIA ROAD

SERVICES LIMITED [1977] 317 where Desai, J (as he then was) opined as
follows:
The function of pleading is to assist the court by defining the
bounds of the action, which cannot be extended without the leave of
the court and consequential amendment of the pleading. The
unfortunate tendency to allow issues not defined in the pleadings to
be raised without amending the pleadings, has frequently been
denounced: see, e.g. Hanbury v Bank of Montreal [18].

There are some matters which the defendant must specifically

plead in his defence if he intends to rely thereon. Order 18, rule 8 (c)
of the Rules of the Supreme Court provides that a party must, in
 any pleading subsequent to a statement of claim, plead specifically
any matter which raises issues of fact not arising out of the
preceding pleading. This rule specifically enforces one of the
cardinal principles of the present system of pleading, viz., that
every defence must plead specifically any matter which makes the
claim not maintainable. A defendant may raise, by his defence, as
many distinct and separate and, therefore, inconsistent defences as
he may think proper. But all these various defences must be clearly
and distinctly pleaded, and the facts upon which each is grounded
should be stated separately. No evidence of such matters can, as a
rule, be given at the trial if they be not expressively pleaded, as
observed in Davies v New Merton Board Mills Ltd [19].

(3) M (A PRACTITIONER) V. LAW ASSOCIATION OF ZAMBIA cause listed as

1999/HP/1649 where Ngulube, CJ (as he then was) held as follows:

I have had occasion in the past to consider the very special parental
jurisdiction reposed in the Chief Justice and I have not entertained
efforts to circumvent or to trim such jurisdiction especially on
technical objections. In the exercise of such jurisdiction, the Chief
Justice has the same authority as the Master of the Rolls in
England. When a Practitioner’s livelihood is at stake and there is
also urgent need to review the matter for the sake of the clients and
the profession, an ordinary action possibly with pleadings is
inappropriate. As I pointed out in the Haamaundu Case (1)
(unreported) I have, as pater familias of the legal profession,
previously entertained applications moved in a variety of ways and
I have not felt any pressing need to prescribe a special procedure,
content only that the matter has come before me. I repeat: Such
cases are not suitable for pleadings in the ordinary way and any
process of a summary kind for use at chambers will be in order.
(4) CHRISTOPHER LUBASI MUNDIA V. SENTOR MOTORS LIMITED [1982] ZR
66 where Chirwa, J (as he then was) held as follows:

“The evidence on behalf of the plaintiff is conflicting as between the

two witnesses as to what exactly transpired at the meeting
between the plaintiff, his witness Mr. Moonga and Mr. Eiman the
Managing Director of the defendant. The plaintiff says that as a
result of the meeting Mr. Eiman agreed to import a car answering a
particular description on behalf of the plaintiff. On the other hand
Mr. Moonga said that Mr. Eiman agreed to treat the plaintiff like any
other customer and that this was sometime in 1979, certainly
before the end of the year as he left the Ministry of Commerce
towards the end of 1979. Paragraph 2 of the statement of claim
states that the oral contract was made in May, 1980, and it was
after this oral agreement that the plaintiff went to negotiate with the
Ministry of Commerce who issued an import licence. The pleadings
are at variance with the evidence adduced in court for according to
documents 11 and 12 the application for import licence was made
on 27th February 1980, and the licence was granted on 11th April,
1980.

The function of pleadings is very well known, it is to give fair notice

of the case which has to be met and to define the issues on which
the court will have to adjudicate in order to determine the matters in
dispute between the parties. Once the pleadings have been closed,
the parties thereto are bound by their pleadings and the Court has
to take them as such. As was said by Lord Russell of Killowen at p.
347 in the case of London Passenger Transport Board v Moscrop (2):

"I have already stated my difficulty in justifying this

implication but, with it as the basis of their order the Court of
Appeal made a declaration that the representation clause
 was void. This appears to me to have been complete re-
casting of the respondents' alleged cause of action and the
matter was unfortunately carried through without
amendment of the statement of claim. This should not be so.
Any departure from the cause of action alleged, or the relief
claimed in the pleadings should be preceded, or at all events,
accompanied, by the relevant amendments, so that the exact
cause of action alleged and relief claimed shall form part of
the Court's record, and be capable of being referred to
thereafter should necessity arise. Pleadings should not be
'deemed to be amended' or 'treated as amended.' They
should be amended in fact."

The manner in which the statement of claim was drafted, looked at

against the evidence of the plaintiff himself who stated that the
statement of69 claim was drafted with full understanding of what
happened in the case, one cannot but echo the observation of Doyle,
C.J., in the case of Sithole supra at p.116 where he says:

"The case is a classic example of the haphazard approach to

pleadings and evidence which is only too common in the
cases coming before the courts."

Further down he says:

"The failure in the respondent's evidence disclose a complete

lack of consideration of what witnesses were required to
prove and the facts which wore sought to be substantiated
by him."

Pleadings in the present case obviously disclose serious short-

comings which are not supported by any evidence. On this point
alone, this case fails because the case as pleaded is not supported
 by any evidence at all. Evidence shows that when the purported
oral contract was made in May, 1980, defendant had already
obtained an import licence to import into the country ten R5 saloon
cars. There was no application to amend the pleadings and the
statement of claim has to be then as it is, namely the case for the
plaintiff.”

(5) WILLIAM DAVID CARLISLE WISE V. E. F. HERVEY LIMITED [1985] ZR 179

where Ngulube, AG, CJ (as he then was) held as follows:

The issue in this case is whether the counter-claim in question does

or does not meet these requirements. Perhaps it is useful to recall
that, in the matter of their functional utility, pleadings are supposed
to serve the useful purpose of, inter alia, not only defining the
issues of fact and of law to be decided, but also to give each party
distinct notice of the case intended to be set up by the other and,
perhaps of greater relevance in this appeal, to provide a brief
summary of each party's case from which the nature of the claim
and defence may be easily apprehended.
(6) JOHN CHISATA V. ATTORNEY-GENERAL SCZ Judgment No. 3 of 1992
where Gardner, AJS (as he then was) opined as follows:

We agree with Mr. Kunda that courts rarely on their own motion
order amendments of pleadings, and that amendments should not
usually be so ordered unless they come within the terms of Order 8
of our own High Court Rules, that is to say, to eliminate all
statements which may tend to prejudice embarrass or delay the fair
trial of the suit or to determine the real question in controversy
between the parties, but, as we understand it, the learned judge in
this instance was saying that, in default of amendment, he would
order the striking out of part of the claim, that is the claim in respect
of the Presidential detention, because constitutionally it disclosed
no cause of action. The learned judge's order for amendment read
as follows:

"During the period of the adjournment I order that the

pleadings be amended to reflect that the provisions of Article 29(8)
have been considered. As it is even claims which are not
sustainable by that Article are included in the pleadings."

As Mr. Kunda has pointed out, the first part of the order was
superfluous because the Article was pleaded in the Defence and
issue was joined in the Reply.

As to the second part of the order which was a comment that even
claims which were not sustainable by reason of Article 29(8) were
included, the notes to Order 18 Rule 19 of the Supreme Court
Practicle (The White Book) indicate that the discretion to strike out
should only be exercise in the clearest cases. The best course in
nearly every case is to allow the whole matter to come to trial and to
leave it to the trial judge to decide what claims are sustainable. In
this type of case, although there appears to be a general prohibition
against claims arising out of Presidential detention orders, claims
will still lie if it is shown that a detention was improperly enforced,
for example that the claimant was detained in an unauthorised
place. So far as this particular case is concerned no such allegation
is apparent from the pleadings; but even so, the matter was
properly dealt with in the pleadings as they stood; the defendant
did not see fit to apply to have part of the claim struck out, and
there was no need for the court to intervene by making the order for
amendment as it did.”
(8) NYAMBE LYUWA V. THE COUNCIL OF THE UNIVERSITY OF ZAMBIA SCZ
Appeal No. 63 of 1994 where Gardner, JS (as he then was) opined as follows:

“As to the first ground of appeal we agree with all the authorities,
including the Harris case, that claims must be set out in the
statement of claim. It is immaterial that claims are put forward in
the writ, and under Order 18 of the rules of the Supreme Court (the
White Book) the necessity for including all claims in the statement of
claim is made quite clear. We agree that if no claim is mentioned in
the statement of claim it must be deemed to have been abandoned.
We also agree with Mr. Mubonda that thereafter such claim cannot
be dealt with unless the statement of claim is amended.

This court has had occasion to indicate, in the case of Mutale v

Crushed Stones Limited (1994) SCZ Judgment No. 17, that notice by
letter of details of proposal to claim for special damages can be
sufficient notice of such a claim to satisfy the requirements of Order
18. The reasons being that the danger of the defendant's being
taken by surprise no longer exists.

In this case, when counsel gave notice that he intended to apply for
reinstatement, counsel for the respondent could have objected on
the grounds that the proposal amounted to an amendment of the
statement of claim, that the notice was too short and that he
required an adjournment, with costs against the appellant, because
he had been taken by surprise. No such objection was made, and
counsel must be taken to have waived the right to object. We
entirely agree with Mr. Mubonda that the notice so given was not in
the correct form but it cannot be said that the appellant was
unaware of the proposed claim. The important consideration, when
a claim is not included in a statement of claim is whether the
defendant had notice of the claim. If he has notice of the of the
claim but objects on the ground that it was not properly pleaded he
 must make objection as soon as the plaintiff indicates that he
wishes to claim something which has not been pleaded. The court
must then make a ruling. In the circumstances, therefore, in this
case the first ground of appeal succeeds, and we find that the
learned trial judge should have considered the possibility of
reinstatement without rejecting it on the grounds that it had not
been pleaded.”

(9) ANDERSON KAMBELA MAZOKA AND OTHERS V. LEVY PATRICK

MWANAWASA & OTHERS [2005] ZR 138 where Sakala, CJ (as he then was)
held as follows:
“The function of pleadings was aptly stated by Chirwa J (as he then
was) in the case of Mundia v Sentor Motors Ltd, a case cited by the
respondents, when at page 69, he said:

"The function of pleadings is very well known, it is to give fair

notice of the case which has to be met and to define the
issues on which the court will have to adjudicate in order to
determine the maters in dispute between the parties. Once
the pleadings have been closed, the parties thereto are
bound by their pleadings and the court has to take them as
such."

In the case of Jere v DVR/SGT Shamayuwa and Another (21), this

court stressed the point on pleadings when it pointed out that "It is
one of the cardinal rules of pleadings for the party to tell his
opponent what he is coming to court to prove and to avoid taking his
opponent by surprise. If he does not do that, the court will deal with
it in one of the two ways. It may say that it is not open to him, that
he has not previously raised it and will not be allowed to rely on it;
or it may give him leave to amend by raising it and protect the other
party 177 by letting the case down." Thus, in a case where a
defence and or, in our view, any matter not pleaded is let in
 evidence and not objected to by the other side, the court is not and
should not feel precluded from considering it.

This is the position emphasized in the case of the re Robinson Settlement,

Gran v Hobbs when the court said:
"The rule is not one that excludes from the consideration of the
Court, the relevant subject matter for decision simply on the ground
that it is not pleaded. It leaves the party in mercy and the Court
will deal with him as is just."

In the present petition, the respondents argued on pleadings that the

petitioners departed from their pleadings in presenting their case and in
some cases presented a completely new case. The petitioners on the other
hand advanced detailed arguments based on adequacy of pleadings on
motor vehicles. These arguments, in our view missed the point. However,
the gist of the petitioners' arguments was that the respondents did not
object to the evidence being led and above all they cross-examined the
witnesses on all the unpleaded matters.

In our considered opinion, the respondents having not objected to the

evidence immediately it was adduced, this Court is not precluded from
considering that evidence. At the end of the day, the issue will depend on
the weight the Court will attach to the evidence which was let in on
unpleaded issues. At this late stage, we cannot therefore exclude the
evidence adduced and allowed without objection. This, however, does not
mean that we condone in any way shoddy and incomplete pleadings.
Each case must be considered on its own facts. In a proper case, the court
will always exclude matters not pleaded more so where an objection has
been raised. Having set out the history of the petition and having
disposed of the various preliminary issue, we now turn to the petition as
pleaded.”
(10) ADMARK LIMITED V. ZAMBIA REVENUE AUTHORITY [2006] ZR 43 where
Lewanika, DCJ (as he then was) held as follows:

We are indebted to all Counsel for their submissions which we have taken
into account in arriving at our decision. We will deal first with the first
ground of appeal which relates to the failure by the defendant to plead
section 164 of the Customs and Excise Act in its defence. Generally
speaking, the purpose of pleadings is to ensure that in advance of trial,
“the issues in dispute between the parties can be defined”, thereby
enabling those matters on which issue is “joined” to be identified. Order 18
Rule 8 of the Supreme Court Practice set out those matters which must be
specifically pleaded before they can be relied upon by a party in its
defence. However, we shall not set out those matters in our judgment as
they are not relevant, but they include such defences as contributory
negligence, fraud, illegality and so on. The issue that was raised by
Counsel for the defendant in his submission, and which was not pleaded in
the defendant’s defence was a point of law. Namely, the provisions of
section 164 of the Customs and Excise Act. The question as to whether or
not points of law may be pleaded is to be found in Order 18 Rule 11 of the
Supreme Court Practice which provides as follows:-

Order 18/11

“A party may by his pleading raise any point of law (the emphasis
is ours)”.

The effect of this rule is that if a party intends to raise a point of law on the
facts as pleaded, it is convenient course to do so in the pleading. This
course of action is desirable as it would ensure that the issues in dispute
are defined at the earliest opportunity and might even have the effect of
avoiding a trial. However, this requirement is not mandatory and in the
case of Independent Automatic Sales Limited v Knowles and Forster (6), it
was held that a party may at the trial raise a point of law open to him even
 though it was not pleaded in his defence. In this case the defendant in its
submissions raised the issue of section 164 of the Customs and Excise
49Act, which provides that every action shall be brought within three
months after the cause thereof arose. In this case the cause of action arose
on 28th August, 1996, being the date on which the notice of seizure was
issued but the writ of summons was only issued on 28th May, 1997,
nearly ten months after the cause of action arose. Clearly, the provisions of
section 164(4) are mandatory and this ground of appeal cannot succeed.

(11) UMDI PHIRI V. BANK OF ZAMBIA [2007] ZR 186 where Chitengi, J (as he then
was opined as follows:

“It is trite law that matters that a party wishes to rely upon in proving or
resisting a claim must be pleaded. However, where a party does not
object to evidence on unpleaded matter, the Court is not precluded from
considering the evidence”.

(12) ATTORNEY-GENERAL V ROY CLARKE [2008] ZR 38 VOLUME 1

“For reasons, which we cannot easily discern from the pleadings in this
case, the learned trial Judge, citing foreign authorities, dealt with issues of
equality before the law and held that the Respondent had been singled out
for negative individualized treatment; while the Editor-in-Chief and
publisher has not been sanctioned.”

(13) MANHARIAL HARTJI PATEL V. SURMA STATIONERS LIMITED & OTHERS

[2009] ZR 112

THE CONTENTS OF PLEADINGS

Formalities
There is a number of formal requirements with which each pleading must comply.
In particular a pleading must show the following:

(a) The heading and title of the action:

(i) The Registry of the High Court;
(ii) The Cause number; and
(iii) The title of the Pleading itself;
(b) Every pleading must be divided into paragraphs numbered consecutively, each
allegation being so for as convenient contained in a separate paragraph. It is
the hall mark of a good pleading that each allegation is stated in a separate
paragraph. No allegation or claim maybe made in respect of a cause of action
unless that cause of action is mentioned in the Writ of Summons;
(c) Dates, sums and other numbers must be expressed in a pleading in figures and
not in words. This requirement is designed to simplify the ready assimilation of
dates, sums and other numbers in pleadings; and
(d) At the end the pleadings must be indorsed –
(i) with the name and address of the Advocates who settle and serve the
pleading;
(ii) with the date on which the pleading is settled;
Nota Bene: The provisions of ORDER 18/12 of the White Book catalogue in detail
“PARTICULARS OF PLEADINGS”

Description of the Parties as on the Writ of Summons: The Forenames and Surname
of the Plaintiff should be stated in full and correctly on every pleading. In any case
were doubt might arise as to the sex, when relevant the appropriate description must
be added.

A female party may describe herself or be described as “Miss”; “Mrs” of “Ms” or Married
Woman (Covert Baron or Baron Covert) or Spinster or Widow as the case may be the
term Femme Sole should only be used to describe a divorced woman.

If only the initials of the first names of any parties appear on the Statement of Claim
the Defendant may fill them by stating the full name. The Defendant may also correct
any mis-spelling.
A name wrongly spelt in a manner idem sonans (sounding the same) is not a material
misnomer e.g (i) ERIC
ERICK;

(ii) MWINGA
MWIINGA

(iii) MUSONDA
MUBONDA

(i) STATEMENT OF CLAIM

ORDER 18/8 of the White Book deals with matters which must be specifically
pleaded. ORDER 18/8 of the White Book cites at least 34 examples.

For our purposes, it is of utmost importance to pay particular attention to the

following:
(a) SPECIAL DAMAGES
A Plaintiff must specifically claim special damages in his pleading or
particulars. “Special damages” means monetary loss which the plaintiff
sustained up to the date of trial. Exact figures must be given, with a
prayer computation. In Zambia, exemplary damages Exempting or
aggravated damages “Mpundu type damages”

(a)
In addition to the provisions of ORDER I8 of the White Book the legal Practitioner is
encouraged to visit the following literature:

(i) THE COMMON LAW LIBRARY, NUMBER 5, BULLEN and LEAKE and JACOB’S
PRECEDENTS OF PLEADINGS, TWELFTH EDITION, LONDON, SWEET &
MAXWELL, 1975
(ii) LITIGATION LIBRARY, PLEADINGS: PRINCIPLES AND PRACTICE BY SIR JACK
JACOB and IAIN. S. GOLDREIN, LONDON, SWEET AND MAXWELL, 1990

(iii) ATKIN’S ENCLOPAEDIA OF COURT FORMS IN CIVIL PROCEEDINGS, SECOND

EDITION, VOLUME 32, 1974 ISSUE – PLEADINGS PROBATE PUBLIC HEALTH
LONDON, BUTTERWORTHS, 1974

PLEADINGS WITHOUT TEARS:

A GUIDE TO LEGAL DRAFTING UNDER THE CIVIL PROCEDURE RULES, EIGHTH
EDITION, by WILLIAM. M. ROSE and RODER EASTMAN, OXFORD UNIVERSITY
PRESS, 2012

(b) Your kind attention is invited to the following foreword in BULLEN

AND LEAKE”

“
FOREWORD

In the year 1868, when Bullen and Leake brought out the third edition of their
book, the system of pleadings had reached a high pitch of development. The
pleader had to state his cause of action with meticulous accuracy: else he might
be met with objections from which he could recover. This was replaced in 1875
by the modern system under which the pleader had only to state the material
facts. This reform took away much of the incentive to accuracy and led to
much loose pleading and, worse still, too much loose thinking. The pleader did
not trouble to see whether the facts really did give rise to a cause of action. He
just threw them all together in the hope that they would. In the long run this
threw them all together in the hope that they would. In the long run this served
him ill – because in this way he might overlook some vital matter – on which the
case would be lost.
 To counter this tendency, the wise practitioner has always had at hand the
latest edition of Bullen and Leake. It has been kept up to date continuously. It
gives modern pleadings in the modern form: and, most important of all, it tells
the pleader what are the essential ingredients of his cause of action, or of his
defence. It is many years now since I drew pleadings, but I used always to have
Bullen and Leake by me. Afterwards it was my privilege to help to edit it with
Arthur Grattan-Bellew, who was in my chambers. Looking back on it, I wish
that we had had the wisdom and skill to do as Master Jacob has now done. He
re-cast it entirely. He has brought in all the countless modern developments in
the law. He has framed new forms of pleading. He has set down in the notes
all the latest cases. He has done it with all the experience and knowledge which
befits the Senior Master of the Supreme Court. He has done it exceedingly well.
I would regard it as an essential part of the equipment of a
barrister’s chambers.

DENNING OF WHITCHURCH.

March, 1975”

Kindly also refer to the following cases:

( 1 ) THE ATTORNEY – GENERAL V. MPUNDU [1984] ZR 6; and
(2) SWARP SPINING MILLS PLC V. CHILESHE AND OTHERS SCZ NO. 6 of 2002.

(b) FRAUD
Please refer to ORDER 18/8/16 of the WHITE BOOK.

(c) ILLEGALITY
Please refer to ORDER 18/8/17 of the WHITE BOOK.