Volume 6 LAWS OF THE REPUBLIC OF ZAMBIA Edition (Revised) Volume 6. Contents. Chapter 69. Misrepresentation Act

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1 Volume 6 LAWS OF THE REPUBLIC OF ZAMBIA 1995 Edition (Revised) Volume 6 Contents Chapter 68. Defamation Act Chapter 69. Misrepresentation Act Chapter 70. Occupiers' Liability Act Chapter 71. State Proceedings Act Chapter 72. Law Reform (Limitation of Action, etc.) Act Chapter 73. Law Reform (Frustrated Contracts) Act Chapter 74. Law Reform (Miscellaneous Provisions) Act Chapter 75. Authentication of Documents Act Chapter 76. Foreign Judgments (Reciprocal Enforcement) Act Chapter 77. Debtors Act Chapter 78. Civil Courts (Attachment of Debts) Act Chapter 79. Service of Process and Execution of Judgments Act Chapter 80. Vacant Chapter 81. Judgments Act Chapter 82. Bankruptcy Act Chapter 83. Preferential Claims in Bankruptcy Act Chapter 84. Deeds of Arrangement Act Chapter 85. Vacant Chapter 86. Vacant

2 REPUBLIC OF ZAMBIA THE DEFAMATION ACT CHAPTER 68 OF THE LAWS OF ZAMBIA CHAPTER 68 THE DEFAMATION ACTCHAPTER 68 THE DEFAMATION ACT ARRANGEMEMT OF SECTIONS Section 1. Short title 2. Interpretation 3. Slander affecting official, professional or business reputation 4. Slander of women 5. Slander of title, etc. 6. Justification 7. Fair comment 8. Newspaper reports of proceedings in court privileged 9. Qualified privilege of newspapers 10. Plea of publication without malice and negligence, with apology 11. Unintentional defamation 12. Mitigation of damages 13. Agreements for indemnity 14. Limitation on privilege at elections 15. Consolidation of actions 16. Proceedings in respect of publication of authenticated reports 17. Extracts from authenticated reports 18. Wireless broadcasting 19. Proceedings affected and savings SCHEDULE-Newspaper statements having qualified privilege

3 CHAPTER 68 DEFAMATION An Act to consolidate and amend the law relating to libel, other than criminal libel, and slander; and to provide for matters incidental thereto. [27th November, 1953]46of 1953Government Notices 303of of 1964 Statutory Instrument 72 of This Act may be cited as the Defamation Act.Short title 2. In this Act, unless the context otherwise requires-interpretation "authenticated report" means a report, paper, votes or proceedings published by the order or under the authority of the President, the Cabinet or the National Assembly; "newspaper" means any paper containing public news or observations thereon, or consisting wholly or mainly of advertisements, which is printed for sale and is published in Zambia either periodically or in parts or numbers at intervals not exceeding thirty-six days; "wireless broadcasting" means publication for general reception by means of radiotelephonic emissions intended to be received by the public, and "broadcast by wireless" shall be construed accordingly; "words" includes pictures, visual images, gestures and other methods of signifying meaning. (As amended by G.N. No. 303 of 1964) 3. In an action for slander in respect of words calculated to disparage the plaintiff in any office, profession, calling, trade or business held or carried on by him at the time of the publication, it shall not be necessary to allege or prove special damage, whether or not the words are spoken of the plaintiff in the way of his office, profession, calling, trade or business.slander affecting official, professional or business reputation 4. In an action for slander in respect of words imputing unchastity or adultery to any woman or girl, it shall not be necessary to allege or prove special damage:slander of women Provided that in any such action a plaintiff shall not recover more costs than damages unless the court before which the action is brought shall certify that there was reasonable ground for bringing the action. 5. (1) In an action for slander of title, slander of goods or other malicious falsehood, it shall not be necessary to allege or prove special damage-slander of title, etc. (a) if the words upon which the action is founded are calculated to cause pecuniary damage to the plaintiff and are published in writing or other

4 permanent form; or (b) if the said words are calculated to cause pecuniary damage to the plaintiff in respect of any office, profession, calling, trade or business held or carried on by him at the time of the publication. (2) Subsection (1) of section eighteen shall apply for the purposes of this section as it applies for the purposes of the law of libel and slander. 6. In an action for libel or slander in respect of words contained in two or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff's reputation having regard to the truth of the remaining charges.justification 7. In an action for libel or slander in respect of words consisting partly of allegations of fact and partly of expressions of opinion, a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved.fair comment 8. A fair and accurate report in any newspaper of proceedings publicly heard before any court exercising judicial authority within Zambia shall, if published contemporaneously with such proceedings, be absolutely privileged:newspaper reports of proceedings in court privileged Provided that nothing in this section shall authorise the publication of any blasphemous or indecent matter. 9. (1) Subject to the provisions of this section, the publication in a newspaper of any report or other matter as is mentioned in the Schedule shall be privileged unless the publication is proved to be made with malice.qualified privilege of newspapers (2) In an action for libel in respect of any such report or matter as is mentioned in Part II of the Schedule, the provisions of this section shall not be a defence if it is proved that the defendant has been requested by the plaintiff to publish in the newspaper in which the original publication was made a reasonable letter or statement by way of explanation or contradiction, and has refused or neglected to do so, or has done so in a manner not adequate or not reasonable having regard to all the circumstances. (3) Nothing in this section shall be construed as protecting the publication of any matter the publication of which is prohibited by law, or of any matter which is not of public concern and the publication of which is not for the public benefit. (4) Nothing in this section shall be construed as limiting or abridging any privilege subsisting (otherwise than by virtue of section 4 of the Law of Libel Amendment Act, 1888, of the United Kingdom) immediately before the commencement of this Act. 10. (1) In an action for libel contained in any newspaper or other periodical publication, it shall be competent to the defendant to plead that such libel was inserted in such newspaper or other periodical publication without actual malice, and without gross negligence, and that before the commencement of the

5 action, or at the earliest opportunity afterwards, he inserted in such newspaper or other periodical publication a full apology for the said libel, or, if the newspaper or other periodical publication in which the said libel appeared should ordinarily be published at intervals exceeding one week, had offered to publish the said apology in any newspaper or periodical publication to be selected by the plaintiff in such action and to such plea to such action it shall be competent to the plaintiff to reply generally, denying the whole of such plea.plea of publication without malice and negligence, with apology (2) No plea shall be filed under the provisions of subsection (1) unless the defendant, at the time of filing such plea, makes a payment of money into court by way of amends, and any plea filed without such payment into court shall be considered a nullity and may be treated as such by the plaintiff in the action. 11. (1) A person who has published words alleged to be defamatory of another person may, if he claims that the words were published by him innocently in relation to that other person, make an offer of amends under this section; and in any such case-unintentional defamation (a) if the offer is accepted by the party aggrieved and is duly performed, no proceedings for libel or slander shall be taken or continued by that party against the person making the offer in respect of the publication in question (but without prejudice to any cause of action against any other person jointly responsible for that publication); (b) if the offer is not accepted by the party aggrieved, then, except as otherwise provided by this section, it shall be a defence, in any proceedings by him for libel or slander against the person making the offer in respect of the publication in question, to prove that the words complained of were published by the defendant innocently in relation to the plaintiff and that the offer was made as soon as practicable after the defendant received notice that they were or might be defamatory of the plaintiff, and has not been withdrawn. (2) An offer of amends under this section must be expressed to be made for the purposes of this section, and must be accompanied by an affidavit specifying the facts relied upon by the person making it to show that the words in question were published by him innocently in relation to the party aggrieved; and for the purposes of a defence under paragraph (b) of subsection (1) no evidence, other than evidence of facts specified in the affidavit, shall be admissible on behalf of that person to prove that the words were so published. (3) An offer of amends under this section shall be understood to mean an offer- (a) in any case, to publish or join in the publication of a suitable correction of the words complained of, and a sufficient apology to the party aggrieved in respect of those words; (b) where copies of a document or record containing the said words have been distributed by or with the knowledge of the person making the offer, to take such steps as are reasonably practicable on his part for notifying persons to whom copies have been so distributed that the words are alleged to be defamatory of the party aggrieved. (4) Where an offer of amends under this section is accepted by the person aggrieved- (a) any question of the steps to be taken in fulfilment of the offer as so

6 accepted shall, in default of agreement between the parties, be referred to and determined by the High Court, whose decision thereon shall be final; (b) the power of the court to make orders as to costs in the proceedings by the party aggrieved against the party making the offer in respect of the publication in question, or in proceedings in respect of the offer under paragraph (a), shall include power to order the payment by the person making the offer to the party aggrieved of costs on an indemnity basis and any expenses reasonably incurred or to be incurred by that party in consequence of the publication in question; and if no such proceedings as aforesaid are taken, the High Court may, upon application of the party aggrieved, make any such order for the payment of such costs and expenses as aforesaid as could be made in such proceedings. (5) For the purposes of this section, words shall be treated as published by one person (in this subsection referred to as the publisher) innocently in relation to another if and only if the following conditions are satisfied, that is to say: (a) that the publisher did not intend to publish them of and concerning that other person, and did not know of circumstances by virtue of which they might be understood to refer to him; or (b) that the words were not defamatory on the face of them, and the publisher did not know of circumstances by virtue of which they might be understood to be defamatory of that other person; and in either case that the publisher exercised all reasonable care in relation to the publication; and any reference in this subsection to the publisher shall be construed as including a reference to any servant or agent of his who was concerned with the contents of the publication. (6) Paragraph (b) of subsection (1) shall not apply in relation to the publication by any person of words of which he is not the author unless he proves that the words were written by the author without malice. 12. (1) In any action for libel or slander, the defendant may, after giving notice of his intention so to do to the plaintiff at the time of filing or delivering the plea in such action, give evidence in mitigation of damages that he made or offered an apology to the plaintiff, in respect of the words complained of, before the commencement of the action or as soon thereafter as he had an opportunity of so doing where the action was commenced before there was an opportunity of making or offering such apology.mitigation of damages (2) In any action for libel or slander, the defendant may give evidence in mitigation of damages that the plaintiff has recovered damages, or has brought actions for damages, for libel or slander in respect of the publication of words to the same effect as the words on which the action is founded, or has received or agreed to receive compensation in respect of any such publication. 13. An agreement for indemnifying any person against civil liability for libel in respect of the publication of any matter shall not be unlawful unless at the time of the publication that person knows that the matter is defamatory, and does not reasonably believe that there is a good defence to any action brought upon it.agreements for indemnity

7 14. A defamatory statement published by or on behalf of a candidate in any election to any local authority or to the National Assembly shall not be deemed to be published on a privileged occasion on the ground that it is material to a question in issue in the election, whether or not the person by whom it is published is qualified to vote at the election. (As amended by G.N. No. 303 of 1964)Limitation on privilege at elections 15. (1) It shall be competent for a Judge or the court, upon the application by or on behalf of two or more defendants in actions in respect to the same, or substantially the same, defamatory statement brought by one and the same person, to make an order for the consolidation of such actions so that they shall be tried together.consolidation of actions (2) After any order has been made under the provisions of subsection (1), and before the trial of the consolidated actions, the defendants in any new actions instituted in respect of the same, or substantially the same, defamatory statement, shall also be entitled to be joined in a common action upon a joint application being made by such new defendants and the defendants in the actions already consolidated. (3) In a consolidated action under this section, the court shall assess the whole amount of damages (if any) in one sum, but a separate verdict shall be given for or against each defendant in the same way as if the actions consolidated had been tried separately, and if the court shall have found a verdict against the defendants in more than one of the actions so consolidated it shall proceed to apportion the amount of damages which it has so assessed between and against the said last-mentioned defendants, and if costs of the action are awarded to the plaintiff the court shall thereupon make such order as shall seem just for the apportionment of such costs between and against such defendants. (4) For the purposes of this section, "defamatory statement" includes libel, slander, slander of title, slander of goods, and other malicious falsehood. 16. (1) It shall be lawful for the defendant in an action for libel in respect of the publication by him or his servant of any authenticated report to bring before the court in which such action is commenced a certificate under the hand of the Speaker of the National Assembly or the Secretary-General to the Government stating that the authenticated report was published by the defendant or his servant by the order or under the authority of the National Assembly or the Cabinet, as the case may be, together with an affidavit verifying such certificate, and the court shall thereupon stay such action, and the action and every writ and process issued therein shall be and shall be deemed and taken to be finally put an end to, determined and superseded by virtue of this section.proceedings in respect of publication of authenticated reports (2) Where a defendant intends to bring a certificate before a court under the provisions of subsection (1), he shall give at least twenty-four hours' notice of such intention to the plaintiff in the action. (3) Where any action for libel is commenced in respect of the publication of any copy of an authenticated report, the defendant may at any stage in the proceedings lay before the court such authenticated report, and such copy, with an addidavit verifying such authenticated report and the correctness of such copy, and the court shall thereupon stay the action, and such action and every writ and process issued therein shall be and shall be deemed and taken to be

8 finally put an end to, determined and superseded by virtue of this section. (As amended by G.N. No. 303 of 1964) 17. In any action for libel in respect of the printing or wireless broadcasting of any extract from or abstract of an authenticated report, it shall be a good defence to show that the matter in question was in fact an extract from or an abstract of an authenticated report and that the publication thereof was bona fide and without malice.extracts from authenticated reports 18. (1) For the purposes of the law of libel and slander, the publication of words by wireless broadcasting shall be treated as publication in a permanent form.wireless broadcasting (2) Sections eight and nine shall apply in relation to reports or matters broadcast by wireless as part of any programme or service provided by means of a broadcasting station within Zambia, and in relation to the wireless broadcasting of such reports or matters, as they apply in relation to reports and matters published in a newspaper and to publication in a newspaper, and subsection (2) of section nine shall have effect, in relation to any such wireless broadcasting, as if for the words "in the newspaper in which" there were substituted the words "in the manner in which" (3) In this section, "broadcasting station" has the meaning assigned to it by the Zambia National Broadcasting Corporation Act.Cap (1) This Act applies for the purposes of any proceedings begun after the commencement of this Act, whenever the cause of action arose, but does not affect any proceedings begun before its commencement.proceedings affected and savings (2) Nothing in this Act shall affect the privileges of the National Assembly or the Cabinet, or the law relating to criminal libel. (As amended by G.N. No. 303 of 1964) SCHEDULE (Section 9) NEWSPAPER STATEMENTS HAVING QUALIFIED PRIVILEGE PART I STATEMENTS PRIVILEGED WITHOUT EXPLANATION OR CONTRADICTION 1. A fair and accurate report of any proceedings in public of the legislature of any part of Her Britannic Majesty's dominions outside Zambia. (As amended by S.I. No. 72 of 1964) 2. A fair and accurate report of any proceedings in public of an international organisation of which the United Kingdom or Zambia or Her Britannic Majesty's Government in the United Kingdom or the Government of Zambia is a member, or of any international conference to which such Governments send a representative.

9 (As amended by S.I. No. 72 of 1964) 3. A fair and accurate report of any proceedings in public of the International Court of Justice or any other judicial or arbitral tribunal deciding matters in dispute between States. 4. A fair and accurate report of any proceedings before a court exercising jurisdiction throughout any part of Her Britannic Majesty's dominions outside Zambia, or of any proceedings before a court-martial held outside Zambia under the Naval Discipline Act, the Army Act, or the Air Force Act, of the United Kingdom. (As amended by S.I. No. 72 of 1964) 5. A fair and accurate report of any proceedings in public of a body or person appointed to hold a public inquiry by the Government or legislature of any part of Her Britannic Majesty's dominions outside Zambia. (As amended by S.I. No. 72 of 1964) 6. A fair and accurate copy of or extract from any register kept in pursuance of the provisions of any written law for the time being in force within Zambia which is open to inspection by the public, or of any other document which is required by such law to be open to inspection by the public. 7. A notice or advertisement published by or on the authority of any court within Zambia or any Judge or officer of such court. PART II STATEMENTS PRIVILEGED SUBJECT TO EXPLANATION OR CONTRADICTION 8. A fair and accurate report of the findings or decision of any of the following associations, or of any committee or governing body thereof, that is to say: (a) an association formed in Zambia for the purpose of promoting or encouraging the exercise of or interest in any art, science, religion, or learning, and empowered by its constitution to exercise control over or adjudicate upon matters of interest or concern to the association, or the actions or conduct of any persons subject to such control or adjudication; (b) an association formed in Zambia for the purpose of promoting or safeguarding the interests of any trade, business, industry or profession, or of the persons carrying on or engaged in any trade, business, industry or profession, and empowered by its constitution to exercise control over or adjudicate upon matters connected with the trade, business, industry or profession, or the actions or conduct of those persons; (c) an association formed for safeguarding the interests of any game, sport or pastime to the playing or exercise of which members of the public are invited or admitted, and empowered by its constitution to exercise control over or adjudicate upon persons connected with or taking part in the game, sport or pastime; being a finding or decision relating to a person who is a member of or is subject by virtue of any contract to the control of the association.

10 9. A fair and accurate report of the proceedings at any public meeting held in Zambia, that is to say, a meeting bona fide and lawfully held for a lawful purpose and for the furtherance or discussion of any matter of public concern, whether the admission to the meeting is general or restricted. 10. A fair and accurate report of the proceedings at any meeting or sitting in any part of Zambia of- (a) any local authority or committee of a local authority or local authorities; (b) any commission, tribunal, committee or person appointed for the purposes of any inquiry by Act or by the President; (c) any other tribunal, board, committee or body constituted by or under, and exercising functions under, any written law for the time being in force within Zambia not being a meeting or sitting admission to which is denied to representatives of newspapers and other members of the public. (As amended by G.N. No. 303 of 1964 and S.I. No. 72 of 1964) 11. A fair and accurate report of the proceedings at a general meeting of any company or association constituted, registered or certified by or under any written law for the time being in force within Zambia or incorporated by Royal Charter, not being a private company within the meaning of the Companies Act. 12. A copy or fair and accurate report or summary of any notice or other matter issued for the information of the public by or on behalf of the Government of Zambia, a local authority or superior police officer.cap. 388 PART III INTERPRETATION 13. In this Schedule- "legislature", in relation to any territory comprised in Her Britannic Majesty's dominions which is subject to a central and a local legislature, means either of those legislatures; "local authority" means a municipal council, or township council; "part of Her Britannic Majesty's dominions" means the whole of any territory within those dominions which is subject to a separate legislature. (As amended by S.I. No. 72 of 1964) 14. In relation to the following countries and territories, that is to say, India, the Republic of Ireland, any protectorate, protected State or trust territory within the meaning of the British Nationality Act, 1948, of the United Kingdom, any territory administered under the authority of a country mentioned in subsection (3) of section 1 of that Act, the Sudan and the New Hebrides, the provisions of this Schedule shall have effect as they have effect in relation to Her Britannic Majesty's dominions, and references therein to Her Britannic Majesty's dominions shall be construed accordingly.

11 (As amended by S.I. No. 72 of 1964) REPUBLIC OF ZAMBIA THE MISREPRESENTATION ACT CHAPTER 69 OF THE LAWS OF ZAMBIA CHAPTER 69 THE MISREPRESENTATION ACTCHAPTER 69 THE MISREPRESENTATION ACT ARRANGEMENT OF SECTIONS Section 1. Short title 2. Removal of certain bars to rescission for innocent misrepresentation 3. Damages for misrepresentation 4. Avoidance of certain provisions excluding liability for misrepresentation 5. Amendment of the Sale of Goods Act, 1893, as in force in Zambia 6. Saving for past transactions CHAPTER 69 MISREPRESENTATION25of 1968 An Act to make provision for the alteration and amendment of the law relating to innocent misrepresentations, and to amend sections 11 and 35 of the Sale of Goods Act, 1893, of the United Kingdom, as in force in Zambia. [7th October, 1968] 1. This Act may be cited as the Misrepresentation Act.Short title 2. Where a person has entered into a contract after a misrepresentation has been made to him, and- (a) the misrepresentation has become a term of the contract; or (b) the contract has been performed; or both, then, if otherwise he would be entitled to rescind the contract without alleging fraud, he shall be so entitled, subject to the provisions of this Act, notwithstanding the matters mentioned in paragraphs (a) and (b).removal of certain bars to rescission for innocent misrepresentation 3. (1) Where a person has entered into a contract after a misrepresentation has been made to him by another party thereto, and as a result thereof he has

12 suffered loss, then, if the person making the misrepresentation would be liable to damages in respect thereof had the misrepresentation been made fraudulently, that person shall be so liable notwithstanding that the misrepresentation was not made fraudulently, unless he proves that he had reasonable grounds to believe and did believe up to the time the contract was made that the facts as represented were true.damages for misrepresentation (2) Where a person has entered into a contract after a misrepresentation has been made to him otherwise than fraudulently, and he would be entitled by reason of the misrepresentation to rescind the contract, then, if it is claimed in any proceedings arising out of the contract that the contract ought to be or has been rescinded, the court or arbitrator may declare the contract subsisting and award damages in lieu of rescission, if of opinion that it would be equitable to do so, having regard to the nature of the misrepresentation and the loss that would be caused by it if the contract were upheld, as well as to the loss that rescission would cause to the other party. (3) Damages may be awarded against a person under subsection (2), whether or not he is liable for damages under subsection (1), but where he is so liable, any award under the said subsection (2) shall be taken into account in assessing his liability under the said subsection (1). 4. If any agreement (whether made before or after the commencement of this Act) contains a provision which would exclude or restrict- (a) any liability to which a party to a contract may be subject by reason of any misrepresentation made by him before the contract was made; or (b) any remedy available to another party to the contract by reason of such a misrepresentation; that provision shall be of no effect except to the extent (if any) that in any proceedings arising out of the contract, the court or arbitrator may allow reliance on it as being fair and reasonable in the circumstances of the case.avoidance of certain provisions excluding liability for misrepresentation 5. (1) Paragraph (c) of section 11 (1) of the Sale of Goods Act, 1893, of the United Kingdom (condition to be treated as warranty where the buyer has accepted the goods or where the property in specific goods has passed) is amended by the deletion of the words "or where the contract is for specific goods, the property in which has passed to the buyer".amendment of the Sale of Goods Act, 1893, as in force in Zambia (2) Section 35 of the Sale of Goods Act, 1893, of the United Kingdom (acceptance) is amended by the insertion before the words "when the goods have been delivered to him and he does any act in relation to them which is inconsistent with the ownership of the seller" of the words "except where section 34 of this Act otherwise provides". 6. Nothing in this Act shall apply in relation to any misrepresentation or contract of sale which is made before the commencement of this Act.Saving for past transactions REPUBLIC OF ZAMBIA THE OCCUPIERS' LIABILITY ACT

13 CHAPTER 70 OF THE LAWS OF ZAMBIA CHAPTER 70 THE OCCUPIERS' LIABILITY ACTCHAPTER 70 THE OCCUPIERS' LIABILITY ACT ARRANGEMENT OF SECTIONS Section 1. Short title 2. Preliminary 3. Duty of occupier of premises 4. Effect of contract on occupier's liability to third party 5. Landlord's liability by virtue of obligation to repair 6. Implied terms in contracts 7. Application to the Republic CHAPTER 70 OCCUPIERS' LIABILITY33of of 1965 An Act to amend the law as to the liability of occupiers and others for injury or damage resulting to persons or goods lawfully on any land or other property from dangers due to the state of the property or to things done or omitted to be done there; and to provide for matters incidental to or connected therewith. [16th August, 1963] 1. This Act may be cited as the Occupiers' Liability Act.Short title 2. (1) The rules enacted by the two next following subsections shall have effect, in place of the rules of the common law, to regulate the duty which an occupier of premises owes to his visitors in respect of dangers due to the state of the premises or to things done or omitted to be done on them.preliminary (2) The rules so enacted shall regulate the nature of the duty imposed by law in consequence of a person's occupation or control of premises and of any invitation or permission he gives (or is to be treated as giving) to another to enter or use the premises, but they shall not alter the rules of the common law as to the persons on whom a duty is so imposed or to whom it is owed; and accordingly, for the purpose of the rules so enacted, the persons who are to be treated as an occupier and as his visitors are the same as the persons who would at common law be treated as an occupier and as his invitees or licensees. (3) The rules so enacted in relation to an occupier of premises and his visitors shall also apply, in like manner and to the like extent as the principles applicable at common law to an occupier of premises and his invitees or licensees would apply, to regulate-

14 (a) the obligations of a person occupying or having control over any fixed or movable structure, including any vessel, vehicle or aircraft; and (b) the obligations of a person occupying or having control over any premises or structure in respect of damage to property including the property of persons who are not themselves his visitors. 3. (1) An occupier of premises owes the same duty, the "common duty of care", to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise.duty of occupier of premises (2) The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there. (3) The circumstances relevant for the present purposes include the degree of care, and of want of care, which would ordinarily be looked for in such a visitor, so that (for example) in proper cases- (a) an occupier must be prepared for children to be less careful than adults; and (b) an occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so. (4) In determining whether the occupier of premises has discharged the common duty of care to a visitor, regard is to be had to all the circumstances, so that (for example)- (a) where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe; and (b) where damage is caused to a visitor by a danger due to the faulty execution of any work of construction, maintenance or repair by an independent contractor employed by the occupier, the occupier is not to be treated without more as answerable for the danger if in all the circumstances he had acted reasonably in entrusting the work to an independent contractor and had taken such steps (if any) as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done. (5) The common duty of care does not impose on an occupier any obligation to a visitor in respect of risks willingly accepted as his by the visitor (the question whether a risk was so accepted to be decided on the same principles as in other cases in which one person owes a duty of care to another). (6) For the purposes of this section, persons who enter premises for any purpose in the exercise of a right conferred by law are to be treated as permitted by the occupier to be there for that purpose, whether they in fact have his permission or not. 4. (1) Where an occupier of premises is bound by contract to permit persons who are strangers to the contract to enter or use the premises, the duty of care

15 which he owes to them as his visitors cannot be restricted or excluded by that contract, but (subject to any provision of the contract to the contrary) shall include the duty to perform his obligations under the contract, whether undertaken for their protection or not, in so far as those obligations go beyond the obligations otherwise involved in that duty.effect of contract on occupier's liability to third party (2) A contract shall not by virtue of this section have the effect, unless it expressly so provides, of making an occupier who has taken all reasonable care answerable to strangers to the contract for dangers due to the faulty execution of any work of construction, maintenance or repair or other like operation by persons other than himself, his servants and persons acting under his direction and control. (3) In this section, "stranger to the contract" means a person not for the time being entitled to the benefit of the contract as a party to it or as the successor by assignment or otherwise of a party to it, and accordingly includes a party to the contract who has ceased to be so entitled. (4) Where by the terms or conditions governing any tenancy (including a statutory tenancy which does not in law amount to a tenancy) either the landlord or the tenant is bound, though not by contract, to permit persons to enter or use premises of which he is the occupier, this section shall apply as if the tenancy were a contract between the landlord and the tenant. (5) This section, in so far as it prevents the common duty of care from being restricted or excluded, applies to contracts entered into and tenancies created before the commencement of this Act, as well as to those entered into or created after its commencement; but, in so far as it enlarges the duty owed by an occupier beyond the common duty of care, it shall have effect only in relation to obligations which are undertaken after that commencement or which are renewed by agreement (whether express or implied) after that commencement. 5. (1) Where premises are occupied by any person under a tenancy which puts on the landlord an obligation to that person for the maintenance or repair of the premises, the landlord shall owe to all persons who or whose goods may from time to time be lawfully on the premises the same duty, in respect of dangers arising from any default by him in carrying out that obligation as if he were an occupier of the premises and those persons or their goods were there by his invitation or permission (but without any contract).landlord's liability by virtue of obligation to repair (2) Where premises are occupied under a sub-tenancy, subsection (1) shall apply to any landlord of the premises (whether the immediate or a superior landlord) on whom an obligation to the occupier for the maintenance or repair of the premises is put by the sub-tenancy, and for that purpose any obligation to the occupier which the sub-tenancy puts on a mesne landlord of the premises, or is treated by virtue of this provision as putting on a mesne landlord, shall be treated as put by it also on any landlord on whom the mesne landlord's tenancy puts the like obligation towards the mesne landlord. (3) For the purposes of this section, where premises comprised in a tenancy (whether occupied under that tenancy or under a sub-tenancy) are put to a use not permitted by the tenancy, and the landlord of whom they are held under the tenancy is not debarred by his acquiescence or otherwise from objecting or from enforcing his objection, then no persons or goods whose presence on the premises is due solely to that use of the premises shall be deemed to be lawfully on the

16 premises as regards that landlord or any superior landlord of the premises, whether or not they are lawfully there as regards an inferior landlord. (4) For the purposes of this section, a landlord shall not be deemed to have made default in carrying out any obligation to the occupier of the premises unless his default is such as to be actionable at the suit of the occupier or, in the case of a superior landlord whose actual obligation is to an inferior landlord, his default in carrying out that obligation is actionable at the suit of the inferior landlord. (5) Nothing in this section shall relieve a landlord of any duty which he is under apart from this section. (6) For the purposes of this section, obligations imposed by any enactment in virtue of a tenancy shall be treated as imposed by the tenancy, and "tenancy" includes a statutory tenancy which does not in law amount to a tenancy, and includes also any contract conferring a right of occupation, and "landlord" shall be construed accordingly. (7) This section applies to tenancies created before the commencement of this Act, as well as to those created after its commencement. 6. (1) Where persons enter or use, or bring or send goods to, any premises in exercise of a right conferred by contract with a person occupying or having control of the premises, the duty he owes them in respect of dangers due to the state of the premises or to things done or omitted to be done on them, in so far as the duty depends on a term to be implied in the contract by reason of its conferring that right, shall be the common duty of care.implied terms in contracts (2) Subsection (1) shall apply to fixed and movable structures as it applies to premises. (3) This section does not affect the obligations imposed on a person by or by virtue of any contract for the hire of, or for the carriage for reward of persons or goods in, any vehicle, vessel, aircraft or other means of transport by or by virtue of any contract of bailment. (4) This section does not apply to contracts entered into before the commencement of this Act. 7. This Act shall bind the Republic but, as regards the liability of the Republic in tort, shall not bind the Republic further than the Republic is made liable in tort by the State Proceedings Act and that Act, and in particular section four thereof, shall apply in relation to duties under sections three to five of this Act as statutory duties. (No. 27 of 1965)Application to the Republic Cap. 71 REPUBLIC OF ZAMBIA THE STATE PROCEEDINGS ACT CHAPTER 71 OF THE LAWS OF ZAMBIA CHAPTER 71 THE STATE PROCEEDINGS ACTCHAPTER 71

17 THE STATE PROCEEDINGS ACT ARRANGEMENT OF SECTIONS PART I PRELIMINARYPART I PRELIMINARY Section 1. Short title 2. Interpretation PART II SUBSTANTIVE LAWPART II SUBSTANTIVE LAW 3. Liability of State in contract 4. Liability of State in tort 4A. Restriction on orders against State. 5. Provisions as to industrial property 6. Application of law as to indemnity, contribution, joint and several tortfeasors and contributory negligence 7. Provisions relating to Defence Force 8. Saving in respect of acts done under prerogative and written laws PART III JURISDICTION AND PROCEDUREPART III JURISDICTION AND PROCEDURE 9. Civil proceedings in High Court 10. Civil proceedings in subordinate courts 11. Interpleader 12. Parties to proceedings 13. Service of documents 14. Venue and related matters 15. Removal and transfer of proceedings 16. Nature of relief 17. Costs in civil proceedings to which State is a party 18. Appeals and stay of execution

18 19. Scope of Part III PART IV JUDGMENTS AND EXECUTIONPART IV JUDGMENTS AND EXECUTION Section 20. Interest 21. Satisfaction of orders against State 22. No judgment by default without leave 23. Execution by State 24. Attachment of moneys payable by State PART V MISCELLANEOUS AND SUPPLEMENTALPART V MISCELLANEOUS AND SUPPLEMENTAL 25. Discovery 26. Exclusion of proceedings in rem against State 27. Limitation of actions 28. Application to State of certain statutory provisions 29. Rules of court 30. Repeal and transitional provisions 31. Savings CHAPTER 71 STATE PROCEEDINGS27of of of 1974 An Act to provide for civil proceedings by and against the State and the civil liabilities and rights of the State and its servants; and for purposes connected with the aforesaid matters. [4th June, 1965] PART I PRELIMINARYPART I PRELIMINARY 1. This Act may be cited as the State Proceedings Act.Short title 2. (1) In this Act, unless the context otherwise requires-

19 "agent", when used in relation to the State, includes an independent contractor employed by the State; "civil proceedings" includes proceedings in the High Court or a subordinate court for the recovery of fines or penalties;interpretation "Defence Force" means the Defence Force of Zambia maintained in accordance with the provisions of section four of the Defence Act; "prescribed" means prescribed by any written law; "proceedings against the State" includes a claim by way of set-off or counter-claim raised in proceedings by the State; "public officer" means a person holding or acting in or performing the functions of an office in the civil service of the Government and includes the President, the Vice-President, a Minister, a Junior Minister, the Secretary to the Cabinet, the Attorney-General, the Solicitor-General, the Auditor-General and members of the Zambia Police Force;Cap. 106 "rules of court" means, when used in relation to the Supreme Court, the High Court or a subordinate court, rules made under the Supreme Court of Zambia Act, the High Court Act and the Subordinate Courts Act respectively; "State" means the sovereign Republic of Zambia; "statutory duty" means a duty imposed by or under any written law;cap. 25 Cap. 27 Cap. 28 "subordinate court" means a court constituted under section three of the Subordinate Courts Act; "written law" means the Constitution, an Order in Council, an Act, an Applied Act, a British Act, an Ordinance and a statutory instrument.cap. 28 (2) Any reference in this Act to the provisions of this Act shall, unless the context otherwise requires, include a reference to rules of court made for the purposes of this Act. (3) Any reference in Part IV or V to civil proceedings by or against the State, or to civil proceedings to which the State is a party, shall be construed as including a reference to civil proceedings to which the Attorney-General, or any Government department, or any public officer as such, is a party: Provided that the State shall not, for the purposes of Part IV or V, be deemed to be a party to any proceedings by reason only that they are brought by the Attorney-General upon the relation of some other person. (As amended by No. 38 of 1970) PART II SUBSTANTIVE LAWPART II SUBSTANTIVE LAW 3. Subject to the provisions of this Act, the State shall be subject to those

20 liabilities in contract to which, if it were a private person of full age and capacity, it would be subject and any claim arising therefrom may be enforced as of right against the State in accordance with the provisions of this Act.Liability of State in contract 4. (1) Subject to the provisions of this Act, the State shall be subject to all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject-liability of State in tort (a) in respect of torts committed by its servants or agents; (b) in respect of any breach of those duties which a person owes to his servants or agents at common law by reason of being their employers; and (c) in respect of any breach of the duties attaching at common law to the ownership, occupation, possession or control of property: Provided that no proceedings shall lie against the State by virtue of paragraph (a) in respect of any act or omission of a servant or agent of the State unless the act or omission would apart from the provisions of this Act have given rise to a cause of action in tort against that servant or agent or his estate. (2) Where the State is bound by a statutory duty which is binding also upon persons other than the State and its officers, then, subject to the provisions of this Act, the State shall, in respect of a failure to comply with that duty, be subject to all those liabilities in tort (if any) to which it would be so subject if it were a private person of full age and capacity. (3) Where any functions are conferred or imposed upon a public officer as such either by any rule of the common law or by any written law, and that officer commits a tort while performing or purporting to perform those functions, the liabilities of the State in respect of the tort shall be such as they would have been if those functions had been conferred or imposed solely by virtue of instructions lawfully given by the State. (4) Any written law which negatives or limits the amount of the liability of any Government department or public officer in respect of any tort committed by that department or officer shall, in the case of proceedings against the State under this section in respect of a tort committed by that department or officer, apply in relation to the State as it would have applied in relation to that department or officer, if the proceedings against the State had been proceedings against that department or officer. (5) No proceedings shall lie against the State by virtue of this section in respect of anything done or omitted to be done by any person while discharging or purporting to discharge any responsibilities of a judicial nature vested in him, or any responsibilities which he has in connection with the execution of judicial process. 4A. Notwithstanding the provisions of this Act, no court of law shall make an order for damages or compensation against the State in respect of anything done under or in the execution of any restriction or detention order signed by the President:Restriction on court orders against State Provided that nothing in this section shall apply to a claim for damages or compensation arising from-

21 (i) physical or mental ill-treatment; (ii) any error in the identity of the person restricted or detained. (As amended by Act No. 22 of 1974) 5. (1) Where after the commencement of this Act any servant or agent of the State infringes a patent, or infringes a registered trade mark, or infringes any copyright (including any copyright in a design subsisting under theregistered Designs Act), and the infringement is committed with the authority of the State, then, subject to the provisions of this Act, civil proceedings in respect of the infringement shall lie against the State.Provisions as to industrial property Cap. 402 (2) Nothing in subsection (1) or in any other provision of this Act shall affect the rights of any Government department under the Patents Act or the Registered Designs Act.Cap. 400 Cap. 402 (3) Save as expressly provided by this section, no proceedings shall lie against the State by virtue of this Act in respect of the infringement of a patent, in respect of the infringement of a registered trade mark, or in respect of the infringement of any such copyright as is mentioned in subsection (1). 6. (1) Where the State is subject to any liability by virtue of this Part, the law relating to indemnity and contribution shall be enforceable by or against the State in respect of the liability to which it is so subject as if the State were a private person of full age and capacity.application of law as to indemnity, contribution, joint and several tortfeasors and contributory negligence. These subsections are deemed to have come into force on 14th April, 1967.*(2) Without prejudice to the generality of subsection (1), Part V of the Law Reform (Miscellaneous Provisions) Act shall bind the State. * These subsections are deemed to have come into force on 14th April, 1967.Cap. 74 These subsections are deemed to have come into force on 14th April, 1967.*(3) Without prejudice to the general effect of section three, Part VI of the Law Reform (Miscellaneous Provisions) Act shall bind the State. * These subsections are deemed to have come into force on 14th April, (As amended by No. 38 of 1970)Cap (1) Nothing done or omitted to be done by a member of the Defence Force while on duty as such shall subject either him or the State to liability in tort for causing the death of another person, in so far as the death or personal injury is due to anything suffered by that other person while he is a member of the Defence Force if-provisions relating to Defence Force (a) at the time that thing is suffered by that other person, he is either on

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