LEGAL PROCESS MUST READ CASES
CASE(S)
Jones v National Coal Board [1957] 2 QB 55,
63−64 per Denning LJ
 Common Law Legal System
Kaniki v Jairus (1967) ZR 71
Customary Law
Nkhoma v Nkhoma (HC) [2004] ZMHC 1 (7
March 2004)
 Customary Law
R v Luka Matengula and three others (1951)
LRNR 148,151
 Customary Law - repugnancy
Sussex Peerage Case (1884) 8 ER
 Literal rule of statutory interpretation
DETAILS
 Emlyn Jones, was buried by a fall of roof in the Llay Colliery at Wrexham and died. His widow
brings this action against the National Coal Board claiming damages on the ground that they
were in breach of their statutory duties, or alternatively were guilty of negligence at common
law.
 The case involved Beluti Kaniki (widow's brother) and Lot Jairus (representing deceased
husband's family).
 Jairus sought compensation for the husband's death from Kaniki. Both parties agreed on the
need for compensation, but the amount was disputed.
 The Shaibila Native Court awarded Jairus £12 damages and £1 hearing fee.
 The case highlights the complexities of customary law and its application in Zambian courts.
 This case revolved around the question of which law should be applied to the administration
of the deceased's estate, Shona customary law or English Probate law. The widow of the
deceased, who was himself of Shona descent, applied for the estate to be administered
under English Probate law.
 The High Court held that the deceased had not divested himself of his customary law. The
court noted that the deceased continued to identify with his Shona community and practiced
some aspects of their customs.
 As a result, the court ruled that Shona customary law should be applied to the administration
of the deceased's estate.
 The Court cited the repugnancy provisions of the statutes and held that the “pointing out”
tradition was unacceptable as” against justice as we people in England see it
 Lord Tinda CJ said:
“If the words of the statute are in themselves precise and unambiguous, then no more
can be necessary than to expound those words in their natural and ordinary sense. The
CASE(S)
Mutale v. Attorney General (1976) ZR, 139
 Literal rule of statutory interpretation
Edward Mweshi Chileshe v ZCCM (SCZ
Judgment No. 10 of 1996)
 Literal rule of statutory interpretation
Smith V Hughes (1960) 1 WLR 830
 Literal rule of statutory interpretation
R v Harris (1836) 7 C&P 446
 Literal rule of statutory interpretation
Sir John Heydon's Case, 1584
 Mischief rule of Interpretation
DETAILS
words themselves alone do, in such a case, best declare the intention of the law giver.”
 The court had to decide whether the statement “between 1 January 1971 and 11 December
1973, you conspired with other persons in Zambia to commit crimes and that you organised
and managed the commission of serious crimes in Zambia which acts are prejudicial to the
security of Zambia” was clear in relation to the rule which stipulates a person who has been
detained ought to be given sufficient reasons for the detention.
 The appellant appealed from a decision in the Industrial Relations Court in an action which he
had brought on the grounds of his dismissal on grounds of his social status. The Court
declined to go into the merits or to make any finding. On appeal the Court was asked to
revisit the definition of social status set out in Ngwira v Zambia National Insurance Brokers.
 There was no need to lay down an exhaustive, exclusive or too categorical on the question of
social status.
 Under the Street Offences Act 1959, it is a crime for prostitutes to "loiter or solicit in the
street for the purposes of prostitution". The defendants were calling to men in the street
from balconies and tapping on windows.
 The court applied the mischief rule holding that the activities of the defendants were within
the mischief the Act was aimed at even though under a literal interpretation they would be in
a private place.
 The defendant bit off his victim's nose. The statute made it an offence 'to stab cut or wound'
the court held that under the literal rule the act of biting did not come within the meaning of
stab cut or wound as these words implied an instrument had to be used. Therefore, the
defendant's conviction was quashed.
 It was stated that there were points to be taken into consideration when interpreting a
statute:
1. What was the common law before the making of the act?
CASE(S)
Hutton v Esther Urban District Council (1973)
2 ALL ER 1123
 Mischief rule of Interpretation
The People v Shamwana and Others
 Mischief rule of Interpretation
Attorney General and MMD v. Lewanika and
4 others, SCZ Judgment No. 2 of 1994
 Golden rule of interpretation
DETAILS
2. What was the "mischief or defect" for which the common law did not provide?
3. What remedy has parliament passed to resolve the defect?
 In this case, the council proposed to construct a sewer to drain surface water from houses
and roads and also to take flood water from a river. The most economical line of the sewer
would take straight through the claimant’s bungalow, which would have to be demolished
but might be rebuilt after the sewer had been constructed.
 The Public Health Act, 1936 empowered the council to construct a public sewer “in, on, or
over any land”. The claimant argued that the expression “land” did not include buildings and
therefore, the council had no power to demolish his bungalow.
 However, section 3 of the Interpretation Act of 1889 (applicable at the time) provided that
unless a contrary intention appears, the expression ‘land’ includes buildings.
 Applying the mischief rule, the Court of Appeal held that the Interpretation Act was
applicable and “land” therefore, included buildings. In consequence, the council had power
to demolish the claimant’s bungalow.
 The accused were charged with treason. Proving the case was dependent on Act No. 35 of
1973 (Zambian Treason Act). Prior to this Act, the law provided that one could not be
convicted of treason unless there were two witnesses to an overt act or two witnesses who
each observed a separate overt act of the same kind of treason.
 This was the law in England and Zambia. But Act No. 35 of 1973 changed the law in Zambia
ensuring that there was no requirement as to a specific number of witnesses to prove the
offence of treason. After the Act came into force, the offence of treason could be proved like
any other criminal offence.
 This case dealt with the constitutional interpretation of Article 71(2)(c) regarding the
membership of Parliament. The case centered on five respondents who were elected to
Parliament on the ticket of the Movement for Multiparty Democracy (MMD) but later
resigned from the party.
 The central issue was the interpretation of Article 71(2)(c) of the Constitution, which stated
CASE(S)
Mumbuna Wamuneo Mwisiya v The Council
of the University of Zambia (1981) ZR 247
 Golden rule of interpretation
Bedford v Bedford (1935) CH 89
 Golden rule of interpretation
DETAILS
that a member of Parliament "shall cease to be a member of the National Assembly" if he or
she "ceases to belong to the political party on whose ticket he was elected."
 The University Senate Graduate Committee refused to award a Master of Laws Degree to the
applicant and directed him to re-write his dissertation. He applied for an order of certiorari
and declaration for the court to remove the matter in its jurisdiction and quash this decision.
 The application was made under a repealed University of Zambia Act to which counsel for the
respondent made an objection. Another objection was that the High Court did not have
jurisdiction to entertain the matter as the senate and the Chancellor had complete power to
the exclusion of the courts of law. The application was made under the University of Zambia
Act, Cap. 233 which was repealed and replaced by the University of Zambia Act, No. 17 of
1979.
 Although the application was made under a repealed Act, the new one and the old are
substantially identical with a few changes in the numbering of sections deleting some and
adding new or enlarging the old sections. What the application intended to achieve was
embodied in the old Act as well as the new Act. The words "to sue and be sued" in s. 15 (2) of
the University of Zambia Act, No. 17 of 1979 mean to sue and be sued in a court of law and
not any other inferior tribunal.
 A son murdered his mother and committed suicide.
 The courts were required to rule on who then inherited the estate, the mother's family, or
the son's descendants.
 The mother had not made a will and under the Administration of Justice Act 1925 her estate
would be inherited by her next of kin, i.e. her son. There was no ambiguity in the words of
the Act.
 The court applied the Golden Rule of interpretation, which states that words should be given
their literal meaning unless it leads to absurdity or an affront to public policy. In this case,
while "issue" literally included the son, the court reasoned that allowing him to inherit would
be contrary to public policy as it would reward a murderer.
CASE(S) DETAILS
Seaford Court Estates Limited V. Asher (1949)  Lord Denning said at page 499:
2 KB 481 “Whenever a statute comes up for consideration it must be remembered that it is not
 Purposive approach to Interpretation within human powers to foresee the manifold sets of facts which may arise, and, even,
if it were, it is not possible to provide for them in terms free from all ambiguity. The
English Language is not an instrument of mathematical precision. Our literature would
be much the poorer if it were. This is where the draftsman of Acts or parliament have
often been unfairly criticised. A judge, believing himself to be fettered by the supposed
rule that he must look to the language and nothing else, laments that the draftsman
have not provided for this or that, or have been guilty of some other ambiguity. It
would certainly save the judges trouble if Acts of parliament were drafted with divine
prescience and perfect clarity. In the absence of it, when a defect appears, a judge can
not simply fold his hands and blame the draftsman. He must set to work on the
constructive task of finding the intention of parliament, and he must do this not only
from the language of the statute but also from the consideration of the social
conditions which gave rise to it, and the mischief which it was passed to remedy, and
then he must supplement the written word so as to given ‘force and life’ to the
intention of the legislature. That was clearly laid down by the resolution of the judges
in HEYDONS CASE and it is the safest guide today. Good practical advice on the subject
was given about the same time by plowden---- put into homely metaphor it is this: A
judge should ask himself the question: If the makers of the Act had themselves come
across this ruck in the texture then do as they would have done. A judge must not alter
the material of which it is woven, but he can and should iron out the creases.”

Attorney General and MMD v. Lewanika and
4 others, (1994) S.C.Z. Judgment no. 2
of 1994
 Purposive approach to Interpretation
 The four respondents were members of the Movement for Multiparty Democracy (MMD). On
31st October 1991 they stood for elections on the tickets of the Movement for Multiparty
Democracy (MMD). The won the elections and took their seats in the National Assembly but
later resigned from the ruling MMD. Consequently, the National Secretary for the MMD
wrote to the Speaker of the National Assembly informing him that the respondents were no
longer members of the Party.
 The judge referred the court to the booklet “The Discipline of Law” 1979 Edition, at p. 12. He
CASE(S)
MacDonald Chipenzi & 3 Others v The People
HPR/03/2014
 Purposive approach to Interpretation
Fletcher vs Budgen (1974) 2 ALL, 1243
 Purposive approach to Interpretation
DETAILS
read a passage in that Book of what Lord Denning said in Seaford Court Estate Led v Asher
 On December 10, 2013, the Applicants published an article in the Daily Nation, alleging that
Zambia’s secret police had recruited a number of foreign militia into the main stream of
police service. The government subsequently arrested the Applicants and charged them with
the violation of Section 67 of the Penal Code. The law imposes maximum of three years
imprisonment for dissemination of false information “likely to cause fear and alarm to the
public or to disturb the public peace.”
 The Applicants challenged the constitutionality of Section 67, arguing that the law was
inconsistent with Article 20 of Zambia’s Constitution, which guarantees “[The] freedom to
impart and communicate ideas and information without interference.”
 On the other hand, the government contended that the criminal prosecution conformed with
Article 20(3) of the Constitution as a reasonable measure required for the purpose of
protecting the reputations, rights and freedoms of others.
 Justice Chali delivered the opinion of the Court. The main issue was whether Section 67 of
Zambia’s Penal Code was a reasonable justification in limiting the freedom of expression by
imposing criminal sanctions for publishing false information likely to cause public fear.
 The court applied the Golden Rule to avoid a narrow interpretation of the Penal Code that
would criminalize all forms of expression, even those that were not intended to cause harm
or disrupt public order.
 The court also considered the Purposive Approach, acknowledging the importance of
balancing freedom of expression with other legitimate aims such as national security and
public order.
 The court held that the Penal Code should be interpreted in a way that protects freedom of
expression to the greatest extent possible, consistent with other legitimate interests.
 The Divisional Court of Queen’s Bench decided that under the Trade Descriptions Act 1968 a
buyer of goods, in this case a car dealer, could be guilty of the offence of falsely describing
goods when he told a private seller that his car was almost worthless, bought it, repaired it
and sold it at a considerable profit.
CASE(S)
Attorney General v Steven Luguru, SCZ
Judgement No. 20 of 2001
 Fringe meaning rule of Interpretation
Ntombizine Mudenda v The Attorney General 
(1979) ZR, 245
 Context rule of Interpretation
DETAILS
 Lord Widgery, CJ said that although he had never thought of the Act as applying to buyers of
goods, it was necessary in the public interest that it should, at least in the case of expert
buyers, and that in his view such decision ‘is not in any sense illogical and is not likely to run
counter to any intention which Parliament may have had’.
 The Respondent raised a complaint against the Attorney-General and Committee on the sale
of govt. pool houses. The Respondent worked in a civil service of the govt. of the republic of
Zambia from January, 1979 to February, 1998. During that time, the respondent acquired an
entry permit. During the period 1979 to 1998, the respondent occupied the house situated at
Plot No. 1222-1, Katopola Road, Rhodes Park, Lusaka. In 1996, the Govt. of the Republic of
Zambia issued a govt. circular on the implementation of the civil service ownership scheme.
 The circular set out some guidelines on the scheme. The respondent who was a Tanzanian
applied to purchase the house where he was residing. The respondent was told that the sale
was restricted to civil servants. Later when the respondent proved to the Housing Committee
that he was a civil servant, he was advised that he could not buy the house because he was
not a Zambian. He then, after further advice from the Permanent Human Rights Commission,
took the matter to the Lands Tribunal which gave the decision in his favour.
 The Attorney General appealed.
Held:
1. Specific performance cannot be ordered against the state. (State Proceedings Act s.16
followed).
2. The injunction of the Lands Tribunal is restricted to Lands disputes.
3. The govt. circular was meant to empower Zambians.
 Appeal allowed
This was an application for a writ of habeas corpus ad subjiciendum. The applicant was
detained under reg. 33 (1) of the Preservation of Public Security Regulations and was served
with the following grounds of detention.
"That you on unknown dates but during the year 1978 and October, 1979 in collusion
CASE(S)
Powell v Kempton Park Racecourse (1889) AC
143.
 Context rule of Interpretation
Tempest v Kilner (1846)
 Context rule of Interpretation
DETAILS
with others yet unknown indulged in the illegal and illicit trafficking in precious stones
like emeralds"
 Counsel for the applicant contended that the grounds of detention were too general,
imprecise and vague and that the detention was punitive and could not therefore have been
made for the preservation of public security. He submitted that the State could have brought
a criminal prosecution against the applicant since the offence was laid down under the Penal
Code. Lastly, he argued that the words "like emeralds" are vague as these might be
interpreted to mean precious stones, which are similar to emeralds, in respect of which being
in possession of, or trafficking in, would not ground a detention order.
Held:
1. The meaning of the word "like" in the context in which it was used meant that the
precious stones were the "same as" or "similar to" emeralds.
2. It was not misleading to use the phrase "like" emeralds.
3. The detaining authority has a discretion either to detain or to institute criminal
prosecution.
 The defendant had been operating an outside betting place. The Act stated 'house, office,
room or other place of betting'.
 The court therefore had to define if 'other place' would cover the defendant's situation.
 The court applied the ejusdem generis rule and held that the other items mentioned in the
statute related to places indoors whereas Tattersall's enclosure was outside. There was thus
no offence committed.
 This considered the Statute of Frauds Act 1677, which noted that a contract for the sale of
'goods, wares and merchandise of £10 or more' needed to be evidenced in writing. This case
concerned stocks and shares.
 The case dealt with the Statute of Frauds 1677, which required contracts for the sale of
"goods, wares and merchandise" to be in writing. The question was whether this applied to
contracts for stocks and shares.
CASE(S)
The People v Bright Mwape and Fred
Mmembe (1995)
 Presumption of constitutionality of
statutes
Coltman v Bibby Tankers Ltd (1987) 3 ALL ER,
1068
 Presumption against injustice
Patel’s Bazaar Limited v The People (Court of
Appeal for Zambia, 1965)
 The presumption that mens rea is a
DETAILS
 The court applied the rule of expressio unius est exclusio alterius ("the express mention of
one thing is the exclusion of another"). Since the statute only mentioned "goods, wares and
merchandise," the court ruled that stocks and shares were not covered and contracts for
their sale did not need to be in writing.
 This case established the principle that statutes should be interpreted narrowly and that
courts should not add to their terms by implication.
 The appellants, who were journalists in an independent weekly newspaper, were charged
with criminal defamation against the President arising from an article referring to him in a
derogatory term. The appellants did not plead to the charge but raised a preliminary issue as
to the constitutionality of Section 69 of the Penal Code.
Held:
1. Section 69 does not deprive any citizen the right to legitimately criticise the President or
the Government.
2. Section 69 of the Penal Code Cap 146 of the Laws of Zambia is not in conflict with Articles
20 or 23 of the Constitution of Zambia.
 This case dealt with the interpretation of the Employer's Liability (Defective Equipment) Act
1969 in the UK. The case involved the death of a steward onboard a ship owned by Bibby
Tankers Ltd. The deceased's widow, represented by Coltman, argued that the ship itself was
"equipment" within the meaning of the Act and that Bibby Tankers was liable for the death
due to defects in the vessel.
 The central issue was whether a ship constituted "equipment" within the meaning of the Act.
 The Judiciary decided to include the term a ship in the interpretation of the term
“equipment” to achieve the intention of Parliament by making the employers liable for injury
or death of employees.
 A servant of the appellant company sold a wrapped sliced loaf to a customer from a
consignment of such loaves which had arrived that very day from the manufacturers, Messrs
Murdoch's of Livingstone. Upon being opened the next day it proved to be extensively
CASE(S) DETAILS
necessary ingredient of statutory contaminated with black mould. It was taken to the Monze Management Board on the
offences Monday and opened by Mr Henderson, the Government Provincial Health Inspector, on the
Tuesday - that is on the third day after its sale. He pronounced it as unwholesome.
 He described the mould as extensive and said that it had obviously been there for a week,
possibly more. On the evidence the learned trial magistrate found that the bread was
unwholesome at the time it was sold by the appellant company. That finding is not in dispute.
Prima facie the appellant company was guilty of the offence charged, and the only substantial
issue before the court was whether or not it had any 'reasonable excuse' for selling that
unwholesome loaf sufficient to excuse it from liability under the Ordinance.

R v Galvin (1987) 2 ALL ER, 851 –  The court can have regard to the title of a statute. Lord Lane said:
 Intrinsic and Extrinsic Aids to Statutory “One can have regard the title of a statute to help resolve an ambiguity the body of it, but
Interpretation it is not, we consider, open to a court to use the title to restrict what is otherwise the plain
meaning of the words of the statute simply because they seem to be unduly wide”.

Re Boaler (1915) 1 KB 21  Short title is part of the Act and the Court can and should consider it. However, a short title is,
 Intrinsic and Extrinsic Aids to Statutory by its very definition, a short title and therefore, as Scrutton LJ put it, ‘accuracy may be
Interpretation sacrificed to brevity’.

Director of Public Prosecutions v Schildkamp  Headings and marginal notes are necessary provided it is realised that they do not carry equal
(1969) 3 ALL ER, 1640 weight with the words in a statute because they enact nothing.
 Intrinsic and Extrinsic Aids to Statutory
Interpretation

Stephens v Cuckfied RDC (1960) 2 QB 373

 Intrinsic and Extrinsic Aids to Statutory
Interpretation

R v Montila (2005) 1 ALL ER, 113  This appeal concerns the meaning of words in legislation which was introduced to combat
CASE(S) DETAILS
 Intrinsic and Extrinsic Aids to Statutory that aspect of criminal conduct which is popularly known as money laundering.
Interpretation 1. The meanings of words used
2. Headings and Side notes

Attorney General v Lamplough (1878) 3 ExD  A schedule is part of the statute

214
 Intrinsic and Extrinsic Aids to Statutory
Interpretation

Robinson v Barton-Eccles Local Board (1883)  Lord Selborne LC on words in a definition section: -
8 App. Cas. 798, “They will also possess their ‘ordinary, popular and natural sense whenever that would
 Intrinsic and Extrinsic Aids to Statutory be applicable”.
Interpretation

Christine Mulundika & 7 Others v The People  The Supreme Court held that: section 5(4) of the Public Order Act Cap 104 contravenes arts
(1995) 20 and 21 of the Constitution and is null and void. Thus, the ratio decidendi / reason for this
 Ratio Decidendi decision is based on constitutional supremacy

Ngati And Others V The People (SCZ  The offences for which the appellants were tried and convicted on were all committed in the
Judgement No. 14 of 2003) Democratic Republic of Congo and the first and second appellants are said to be Congolese.
 Ratio Decidendi  The trial took place at Ndola in Zambia. Thus, the question of jurisdiction of the Zambian
courts arose. This question of jurisdiction although not raised at trial, was raised at the
hearing of the appeal.

Held:
1. Crime has ceased to be largely local in origin and effect. Crime is now established on an
international scale and common law must face this new reality.
2. The appellants are Zambians and although the offence was committed out of Zambia, the
Penal Code applies to the appellants by virtue of Section 6 (1) of the Penal Code.
3. It is settled law that a court is competent to convict on a single identifying witness
CASE(S)
Somchai Liangsiriprasert v Government of
the United States of America (1)
 Ratio Decidendi
Amber Louise Guest Milan Trbonic V Beatrice
Mulako Mukinga,attorney-general
2010/HP/0344
 Res Judicata
Donoghue v Stevenson (1932) AC, 562
 Type of precedent - Original precedent
Abedinegal kapesh and another v the people
(2017) ZMSC 94
 Type of precedent - Original precedent
DETAILS
provided the possibility of an honest mistaken identity is eliminated.
Ratio decidendi:
 Zambian courts hold jurisdiction over Zambian defendants for crimes against Zambians,
regardless of location, as crime transcends local boundaries. Additionally, a single eyewitness
can suffice for conviction if mistaken identity is ruled out, as in this case.
 Lord Griffiths states: -
“Unfortunately, in this century crime has ceased to be largely local in origin and effect.
Crime is now established on an international scale and Common Law must face this new
reality”.
 The underlying principle regarding the plea of res judicata is expressed in the maxim:
reipublicaes at sit finis; litiam; meaning that it is in the public interest that there should be
an end to litigation
 First created and applied when a point of law had never been decided on before e.g. the
‘neighbour principle’
 Mrs. Donoghue drank ginger beer bought for her in a cafe. It contained a decomposed snail,
making her ill. She sued the manufacturer, Mr. Stevenson, who made the ginger beer in
sealed bottles.
 In 2017, the appellants, being dissatisfied with the judgment of the Kabwe High Court
appealed to the Supreme Court. They contended among other things, that the trial court
erred in law to convict the appellants of murder. They further stated that the court erred in
law to sentence the appellants to life imprisonment, as the sentence was excessive.
 This case accorded the Supreme Court a great opportunity to discuss the belief in witchcraft
and the offending conduct premised on that belief, as well as the multiple violations that are
coupled with the same belief. Remarkably, the Court moved away from its precedent that
was set prior to this decision that a belief in witchcraft, though unreasonable, was prevalent
in our community and that such a belief is an extenuating factor. Thus, the Supreme Court in
CASE(S) DETAILS
this case held that a belief in witchcraft should reach the threshold required for provocation if
it is to serve as an extenuating factor to an accused person facing a charge of murder. This
departure was done in the interest of justice and development of jurisprudence.
 The Supreme Court held that it is no longer the case that a mere belief in witchcraft affords
an extenuating circumstance. The belief in witchcraft must reach the threshold of
provocation to serve as an extenuating circumstance.

Joel Chikubabe Lungu v The People (1985) Cause of death:

Z.R. 155 (S.C.) as distinguished from The  Lungu v The People: The deceased did not die as a direct result of the substance injected by
People v Zulu (1968) Z.R. 88 the appellant.
 Terminology In Handling Judicial  The People v Zulu: The deceased's death was directly caused by the substance administered
Precedent - Distinguishing by the accused.

Nature of negligence:
 Lungu v The People: The court found that the mere act of giving an injection by an
unqualified person was not, in itself, evidence of negligence sufficient to support a conviction
for manslaughter.
 The People v Zulu: The court found that the accused's act of injecting a dangerous substance
without any medical knowledge or expertise constituted gross negligence.

Charge:
 Lungu v The People: The appellant was initially charged with murder but was convicted of
the lesser offense of manslaughter.
 The People v Zulu: The accused was charged and convicted of murder.

Standard of care:
 Lungu v The People: The court applied the standard of care expected from a reasonably
prudent person in the appellant's position (not a qualified medical practitioner).
 The People v Zulu: The court applied the standard of care expected from a qualified medical
practitioner, which the accused did not meet.
CASE(S)
Merit v Merit (1971) was distinguished from
Balfour v Balfour (1919)
 Terminology In Handling Judicial
Precedent - Distinguishing
Abel Banda v The People (1986) Z.R. 105
(S.C.) which overruled Chibozu and Anor
(1981) Z.R. 2
 Terminology In Handling Judicial
Precedent - Overruling / Departing
from a previous decision
DETAILS
Public interest:
 Lungu v The People: The court emphasized the importance of protecting public safety by
deterring others from administering injections without proper training or qualifications.
 The People v Zulu: The court emphasized the importance of holding medical practitioners
accountable for their actions and ensuring patient safety.
In summary:
 The Lungu case distinguished itself from the Zulu case by differentiating the cause of death,
the nature of negligence, the charge, the standard of care applied, and the specific public
interest concerns involved.
 In both cases, a wife made a claim against her husband for breach of contract. In Balfour v
Balfour, the earlier decision, the claim did not succeed because the parties did not intend to
create legal relations.
 However, in the latter case of Merit v Merit, the claim was successful because husband and
wife were on separation and the agreement was made in writing. Thus, the parties intended
to create legal relations.
 Merritt v Merritt established an exception to the principle in Balfour v Balfour. While
domestic agreements are generally presumed not to be legally binding, they can be enforced
if the parties demonstrate a clear intention to create legal relations.
 The appellant was convicted of murder by administering a pesticide contained in a drink of
Kachasu. The Prosecution evidence included, inter alia, an interrogation conducted without
administering a warn and caution by the village headman.
Held:
1. In order to have certainty in the law, the Supreme Court should105 stand by its past
decisions even if they are erroneous unless there is a sufficiently strong reason requiring
that such decisions should be overruled. Chibozu and Anor v The People overruled.
CASE(S)
Donald Maketo & 7 Others v The People
(S.C.Z. Judgment No. of 1979)
 Terminology In Handling Judicial
Precedent- Overruling / Departing
from a previous decision
DETAILS
2. A village headman is not a person in authority for purposes of administering a warn and
caution before interrogating a suspect, since his normal duties do not pertain to
investigating crime.
3. A prosecutor is under no duty to place before the court all the evidence known to him,
however where he knows of a credible witness whose evidence supports the accused's
innocence, he should inform the defence about him.
 "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 good reason to decline to follow it."
 We have already pointed out that Chibozu was wrongly decided and the next question for us
to consider is whether there is sufficiently strong reasons for us to decline to follow the
decision in that case, it is our considered view that justice was not served in Chibozu because
the symbolic scales of justice was mean that just as an accused person should not be
convicted unless there is sufficient and cogent evidence proving his guilt beyond reasonable
doubt, the State also should not be made to lose a case unless the evidence it adduces
cannot, in law, support a conviction; that way the scales are balance.
 On this basis we come to the conclusion that sufficiently strong reason does exist to warrant
the overruling of Chibozu on the basis that it is a non sequitur. We therefore hold that
Chibozu is no longer good law to the extent considered in this judgment and it is therefore
overruled.
 The case of Donald Maketo & 7 Others v The People (S.C.Z. Judgment No. 5 of 1979) did not
explicitly overrule any previous decision. However, it did depart from the holding in the case
of Hamainda v The People (1972) Z.R. 310 on the issue of whether a conviction can be based
solely on an uncorroborated confession.
Previous decision:
 In Hamainda v The People, the court held that a conviction cannot be based solely on an
CASE(S)
Paton v Attorney General and Others, (1968)
Z.R.185
 Terminology In Handling Judicial
Precedent- Overruling / Departing
from a previous decision
Tobo v People (S.C.Z. Judgment No. 2 of
DETAILS
uncorroborated confession. This was based on the principle that an uncorroborated
confession is inherently unreliable and should not be used to convict an accused person.
Departure in Maketo v The People:
 In Maketo v The People, the court disapproved of the holding in Hamainda and held that a
conviction can be based solely on a well-proved uncorroborated confession. The court
reasoned that, while an uncorroborated confession should be treated with caution, it can still
be reliable if it is well-proved and there is no reason to doubt its truthfulness.
Significance:
 The departure from the holding in Hamainda in the Maketo case has had a significant impact
on Zambian law. It has made it easier for the prosecution to secure convictions based solely
on confessions, even if there is no other evidence to support the confession. However, the
decision has also been criticized for undermining the principle against self-incrimination and
for making it more difficult for accused persons to defend themselves.
 This case involved Mr. Paton, a citizen of the United Kingdom and Colonies who had been
resident in Zambia for 15 years. He was declared a prohibited immigrant and deported. He
sued the government for false imprisonment and related claims.
 The Court of Appeal ruled that it is not absolutely bound by its previous decisions, but will
only depart from them for compelling reasons.
 The court found that Mr. Paton was falsely imprisoned on two occasions:
1. He was served with a deportation order and given 24 hours to leave, despite it being a
Sunday and him being a long-term resident.
2. He was removed from the airport and forced to leave the country without due
process.
 The court awarded Mr. Paton damages for both instances of false imprisonment, including
exemplary damages for the oppressive and arbitrary nature of the government's actions.
 The appellant and some other people including the deceased were at a drinking party. They
CASE(S)
1991)
 Terminology In Handling Judicial
Precedent - Reversing/Overturning on
Appeal
Christine Mulundika and 7 others v The
People (1995) S.C.Z. Judgement No. 25 of
1995
 Terminology In Handling Judicial
Precedent – Dissenting
Paton v Attorney General and Others (1968)
Z.R 185
 Principle Of Stare Decisis
Davis Joke Kasote v The People (1977) ZR 75
 Principle Of Stare Decisis
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later left the party and, on the way, some branched off to go to their villages leaving the
deceased and the appellant to proceed to their own village. It was testified that the appellant
was the last person to be seen in the company of the deceased.
 The following day, one of the villagers and the deceased's father interrogated the appellant
on the whereabouts of the deceased whereupon the appellant then led them to an anthill
where they found the deceased's half-naked body. The appellant did not offer any testimony
in his defence but called a psychiatrist to prove the appellant's defence of insanity.
 The appellant was tried and convicted for the offence of murder contrary to section 200 of
the Penal Code Cap. 146 of the Laws of Zambia. The particulars of the offence alleged that on
21st September, 1980 at Kasama, ins the Kasama District of the Northern Province of the
Republic of Zambia, he murdered Salome Safeli Chitabo. He was sentenced to death. He has
appealed against conviction. Appeal was allowed
 Where Mr Justice Matthew Chaila, had a dissenting judgement from that of the majority
judgement of Mr Justices Ngulube CJ, Bweupe DCJ, Chirwa and Muzyamba
 The appellants challenged the constitutionality of certain provisions of the Public Order Act,
Cap.104, especially s. 5(4) which requires any person to hold a peaceful assembly to obtain a
permit and contravention of which is criminalized by S.7 of the same Act.
 The courts have made a pronouncement on the principle of stare decisis
 The Court is not absolutely bound by its previous decison. A previous decision will not be
followed only for very compelling reasons and only where the court clearly considers that
the previous decision was wrong.
 The appellant was convicted on two counts of forgery and uttering a false document contrary
to sections 347 and 352 respectively of the Penal Code, Cap.146. The alleged false document
was a certificate of insurance of a motor vehicle.
 The courts have made a pronouncement on the principle of stare decisis
 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
CASE(S) DETAILS
lower courts are bound by the latest decision.

Match Corporation Limited and Development 
Bank of Zambia and the Attorney General
SCZ Judgment No. 3 of 1999
 Principle Of Stare Decisis
The appellant had obtained foreign currency and local currency loans from the 1st
respondent between 1989 and 1991. The loans were secured by a floating charge and a
specific charge over two real property in Luanshya and Lusaka and over plant and machinery.
The foreign currency was repayable according to a specific schedule at the rate of exchange
of the dollar to the Kwacha prevailing from time to time. The appellant and other borrowers
of the 1st respondent soon found themselves in severe distress when the new MMD
government introduced liberalised economic policies which saw the Kwacha depreciate
dramatically against the hard currencies. Consequently, the borrowers, including the
appellant, defaulted on their loans to the first respondent.

Held:
 That there was the necessary special relationship between the parties to support the creation
of rights of indemnity.

The courts made a pronouncement on the principle of stare decisis:

 Again in Kasote v The People (1977) Z.R. 75, this Court not only affirmed the importance of
the principle of stare decisis to a hierarchical system of Court (whereby lower Courts are
bound to follow the latest of any superior Court’s decision on a point) but also affirmed that
being the final Court in Zambia this Court 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. Again, in Abel Banda v The People (1986) Z.R. 105, this Court
had to resolve which of two conflicting decisions represented good law and having made that
choice we had to consider the principle of stare decisis. We had this to say at page114:

“The problem before us therefore is that we have made case law which we have now
realized is indefensible. The principle of stare decisis requires that a court should abide
by its ratio decidendi in past cases. Put simplistically in order to have certainty in the
CASE(S) DETAILS
law decisions of courts should be consistent and should not be so readily changeable as
to make it at any given time what the law is on a given issue. In order to uphold this
principle therefore past decisions should not be exploded for the sole reason that they
are wrong. Courts should stand by their decisions even if they are erroneous unless
there be a sufficiently strong reason requiring that such decisions should be overruled.
As this Court held in Kasote v The people.

Abel Banda v The People (1986) Z.R. 105  The appellant was convicted of murder by administering a pesticide contained in a drink of
(S.C.) Kachasu. The Prosecution evidence included, inter alia, an interrogation conducted without
 Principle Of Stare Decisis administering a warn and caution by the village headman.

Held:
1. In order to have certainty in the law, the Supreme Court should stand by its past decisions
even if they are erroneous unless there is a sufficiently strong reason requiring that such
decisions should be overruled. Chibozu and Anor v The People overruled.

Bonaventure Bweupe v Attorney General and  The plaintiff was a High Court judge who delivered a ruling in a case heard in open court to
2 Others (1984) Z.R. 21(H.C.). the effect that UNIP special constables did not exist in law.
 The High Court CJ is an ex-offico judge  Reacting to that ruling, the then Minister of Home Affairs under whose auspices the special
of the HC constables fell, made certain statements which were published by the second and third
defendants. In the said publication the second defendant included the Minister's demand for
an apology from the plaintiff. The third defendant did not include this in its publication of the
Minister's reaction.
 The plaintiff contended that the words spoken by the Minister and repeated by the second
and third defendants were defamatory of him. The defendants argued that the words
complained of amounted to fair comment, noble without malice, upon a matter of public
interest, namely, a ruling delivered by the plaintiff in his capacity as a judge of the High Court.
Held:
1. A demand for apology from a judge or judicial officer goes beyond the defence of fair
comment.
CASE(S)
Edward Jack Shamwana v Levy Patrick
Mwanawasa [1994] ZMHC 2
 The High Court CJ is an ex-offico judge
of the HC
Michael Chilufya Sata v The Post Newspapers
and Another [1995] ZMHC 1
 The High Court CJ is an ex-offico judge
of the HC
The People v Roxburgh (1972) Z.R. 31 (H.C.)
 The High Court CJ is an ex-offico judge
of the HC
Mwanza V The People (1976) Z.R. 154 (H.C.)
 The supervisory powers of the High
Court
DETAILS
2. It is totally improper that a member of the public should take upon himself to call upon a
judge or any judicial officer acting in the exercise of his judicial function to apologise to
him, no matter how wrong that judge or other judicial officer may be.
 The plaintiff announced his intention to contest the Mumbwa by-election and the defendant
started referring to him as 'a treason ex-convict'. The plaintiff then applied for an interim
injunction to restrain the defendant “by himself, his agents whomsoever or servants referring
to the plaintiff as a treason ex-convict or as a convict in the light of a Presidential absolute
and unconditional pardon”.
Held:
 Any judge faced with an ex parte application for an injunction is duty bound to critically
examine and not gloss over such application and to be satisfied that the situation revealed
justifies an order on an urgent basis pending an inter parte hearing shortly thereafter.
 The plaintiff, who was at all material times a politician and public official holding a ministerial
appointment, brought three actions for libel against the defendant, contending that they had
defamed him in their newspaper publications. In May 1992 the defendants published an
editorial article in their newspaper stating that the plaintiff was a political survivor and that in
the second Republic ‘he survived vetting on several occasions’.
 The defendant, a non-Zambian citizen, entered into a bigamous marriage in the United States
of America.
 He subsequently traveled to Zambia and resided there. He was charged with the offense of
bigamy under the Zambian Penal Code.
 The accused was charged before the Subordinate Court in Kitwe with indecent assault on a
female contrary to section 139 (1) of the Penal Code, Cap. 146 and sentenced to twenty
months' imprisonment with hard labour. The record came before the High Court for the
purpose of confirmation of sentence.
CASE(S) DETAILS
 The judge considered the effect of section 12 of the Supreme Court Act, No. 41 of 1973, on
the powers of the High Court on revision. He also considered the meaning of the word
"indecent".

Held:
1. Section 12 of the Supreme Court Act, No. 41 of 1973, has removed only the appellate
jurisdiction of the High Court. Hence the power of the High Court to exercise its
revisionary jurisdiction remains unaffected. The People v Chikuta not followed.
2. "Indecency" in this context has a wider meaning than pure sexual indecency. To construe
the word "indecency" so narrowly that an offence under this section cannot be made out
unless there is explicit evidence of what we would call "sexual desire" is to construe the
section wrongly in Zambia today.
3. Where a man vested with authority to search, deliberately strips a suspect of the other
sex naked when everybody knows and the common practice is known that men do not
search women just as women do not search men and thereby breaks the custom in
Zambia, his conduct is indecent.

 The High Court is not restricted in relation to territorial jurisdiction unlike the Subordinate
Court which is restricted to particular districts.

Zambia National Holdings Limited and
Another v Attorney General (1993-1994) Z.R.
115
 The High Court
 The appellants brought a petition in the High Court to challenge the decision for the
respondent to acquire compulsorily under the Lands Acquisition Act the appellants' land
being Stand number 10934 Lusaka which is also known as the New UNIP Headquarters. The
President resolved that it was desirable or expedient in the interests of the Republic to
acquire this property whereupon the appropriate Minsiter gave notice to the appellants of
the Government's intention in that behalf and the steps and formalities under the Act for
such acquisition were commenced. The appellants wrote to the respondent suggesting a sum
of money to be aid as compansation but as it turned out, and as the parties specifically
informed the learned trial judge, they wished the question of compensation to be postponed
until the court had disposed of the challenge to the legality and constitutionality of the
CASE(S) DETAILS
compulsory acquisition. The petition was unsuccessful and the appellants appealed.

Held:
1. Although Article 94 of the constitution gives the High Court unlimited jurisdiction that
court is bound by all the laws which govern the exercise of such jurisdiction

 The court held that although the High Court has unlimited jurisdiction, it is not limitless