Small Claims Court (Amendment)
| N o . 14 of 2008 421
GOVERNMENT O F ZAMBIA
ACT
No.
14 o f 2008
Date of Assent: 24th September, 2 0 0 8
An A c t to a m e n d the Small C l a i m s C o u r t A c t
[26th September, 2008
E N A C T E D by t h e Parliament o f Zambia.
Enactment
1.
This A c t may be cited as the Small Claims Court
( A m e n d m e n t ) Act, 2 0 0 8 , and shall be read as o n e with the Small
C l a i m s Court Act, in this Act referred to as t h e principal Act.
Short title
2.
Section two o f the principal Act is amended
(") by t h e deletion of the definitions o f
"arbitrator" and " a w a r d " ; and
Cap. 47
Amendment
of section 2
(b) by the insertion in the appropriate
places of the following new
definitions:
" commissioner " m e a n s a person
appointed by the C o m m i s s i o n under section six;
" ' j u d g m e n t " means, the decision
m a d e by the commissioner under section twenty in
favour o f either party to a claim; and
" small claim " means, a liquidated claim that does not exceed such
s u m as the Chief Justice may, by statutory instrument, specify.
3 . Section four of the principal Act is amended by the deletion
of the w o r d s " O n e arbitrator " and the substitution therefor of the
words " A commissioner ".
Amendment
of section 4
4. T h e principal Act is amended by the repeal o f section five
and the substitution therefor of the following new section.
Repeal and
replacement
of section 5
5. (1) The jurisdiction of a small claims court shall be
limited to liquidated claims that do not exceed such sum as
the Chief Justice may, by statutory instrument, specify.
Single Copies of this Act can be obtained from the Government
P.O. Box 30136, 10101 Lusaka. Price K2.500 each.
Jurisdiction
of small
Claims court
Printer,
422
N o . 14 of 2 0 0 8 |
Small Claims Court
(Amendment)
(2)
N o t w i t h s t a n d i n g the generality of subsection (1), a small
claims court shall havejurisdiction in respect of the following causes
of action:
(a) proceedings for the delivery of movable or
i m m o v a b l e p r o p e r t y w h o s e v a l u e d o e s not
exceed the amount specified;
(h) proceedings for debts that are due and payable;
(c) proceedings for rentals that are due and payable
in respect of any p r e m i s e s ;
(d) proceedings for possession against the occupier
of any premises w h e r e the right of occupation
per month does not exceed the sum that the
C h i e f J u s t i c e may, by s t a t u t o r y i n s t r u m e n t ,
specify;
(e) p r o c e e d i n g s relating to or a r i s i n g out o f a
c h e q u e or an a c k n o w l e d g e m e n t of debt signed
by a debtor; and
(f) counterclaims in respect o f any proceedings
mentioned in paragraphs fa), fb), (c),fd) or fe).
(3) A claim for interest or costs shall not be taken into account in
determining whether a claim falls within the jurisdiction of a small
claims court.
(4) A small claims court shall not have jurisdiction in respect
of—
(a) a claim m a d e under customary law;
(b) an action which is beyond the jurisdiction o f the court,
notwithstanding any agreement of the parties thereto:
(c) claims for divorce, custody or maintenance other than
arrears in m a i n t e n a n c e ;
(d) cases involving the validity of a will;
fe)a matter in which an injunction is sought;
If) a matter in which damages are sought for—
(i) defamation;
(ii) malicious prosecution or wrongful imprisonment
or arrest; o r
(iii) adultery or seduction;
(g) an action against a consular officer; or
(h) an action against a foreign State.
(5) For the purposes of this section " consular officer " m e a n s
any person appointed as consul general, consul, vice consul or
consular agent by a foreign State and holding a valid exequatur or
other authorisation to act in Z a m b i a in that capacity.
Small Claims Court (Amendment)
[ N o . 14 o f 2 0 0 8 4 2 3
5 . T h e principal Act is amended by the insertion immediately
after section five of the following new section:
Insertion of
new section
5A
5 A . A n y provision in an agreement p u r p o r t i n g to
exclude the jurisdiction of a small claims court shall be of no
effect.
Agreement to
exclude
jurisdiction
of court to be
of no effect
6. Section six o f the principal Act is amended by the deletion
of the word '"arbitrators'* and the substitution therefor of the
word '"commissioners".
Amendment
of section 6
7. T h e principal Act is amended by the insertion immediately
after section six of the following n e w section:
Insertion o f
new section
6A
6A. (1) In an action in which the sum claimed does not
exceed the jurisdiction of the court and is the balance o f an
account, the court may enquire into and hear evidence upon
the w h o l e account, even though that account relates to items
and transactions e x c e e d i n g the jurisdiction of the court.
Incidental
Jurisdiction
(2) Where the amount claimed or other relief sought does
not exceed the jurisdiction of the court, the court shall not be
deprived o f that jurisdiction merely because it is necessary
for the court, in order to arrive at a decision, to give a finding
upon a matter beyond its jurisdiction.
(3) T h e plaintiff may only claim for the relief of specific
performance if such claim is accompanied by an alternative
claim for payment o f quantified damages that the plaintiff
has suffered as a result of the defendant's failure to comply
with the plaintiffs obligations.
8. T h e principal Act is amended by the repeal of section seven
and the substitution therefor of the following n e w section:
Repeal and
replacement
of section 7
7. A person shall not be appointed as a commissioner unless
the person is a legal practitioner of not less than five years
standing.
Qualification
for
appointment
as
commissioner
9. Section eight of the principal Act is amended by the deletion
of the w o r d s '"An arbitrator" and the substitution therefor of the
words " A commissioner".
Amendment
of
section 8
424
N o . 14 of 2008]
Repeal and
replacement
of section 9
Conflict o f
interest
Amendment
of section 10
Small Claims Court
(Amendment)
10. The principal Act is amended by the repeal of section nine
and the substitution therefor of the following n e w section:
9.
A person shall not sit as a c o m m i s s i o n e r in any
matter in which that person is a party, or in which that person
has a direct or indirect pecuniary or personal interest.
11. Section ten of the principal Act is amended by the deletion
of subsection (1) and the substitution therefor of the following
subsection:
(1) The Commission may appoint such number of officers
as t h e C o m m i s s i o n m a y c o n s i d e r n e c e s s a r y for t h e
administration of this Act.
Insertion of
new section
12A
12. The principal Act is amended by the insertion immediately
after section twelve of the following n e w section:
Indiv idual
may
commence
action
12A. (1) An individual may institute an action in the
court.
(2) A body corporate or unincorporate body may b e c o m e
a party to an action as a defendant.
13. The principal Act is amended by the insertion immediately
after section sixteen of the following n e w sections:
Insertion of
new
sections
16A.
I6B. I6C
and 16D
Institution
of actions
16A. (1) Prior to the c o m m e n c e m e n t of an action in the Court,
the plaintiff shall cause to be issued and served upon the
defendant a letter of d e m a n d requiring the defendant, within
fourteen days of the receipt of such letter, to admit or deny the
claim.
(2) A defendant shall, within fourteen days of receiving a
letter of demand, reply to the letter, and shall indicate whether
the defendant admits or denies the claim.
(3) T h e Clerk o f Court shall —
(a) upon receiving a reply from a defendant, or in default
thereof upon receiving p r o o f of service of a
letter of d e m a n d from a plaintiff; and
(b) upon the expiration of fourteen days from the date
of service;
cause a Notice of Claim to be issued to the defendant.
(4) A Notice of Claim issued under subsection (3) shall be served
upon a defendant in a c c o r d a n c e with rules 3 and 4 of the rules of
court.
Small Claims Court (Amendment)
[No. 14 of 2008
16B. A claim exceeding the jurisdiction of a small claims
court shall not be split with the object of recovering it in more
than o n e action if the parties to those actions and the point a t
issue in those actions would be the same.
16C. (1) A plaintiff may at any time before or during
the hearing of the plaintiff's action, withdraw the plaintiff's
claim with the leave o f court, and on such conditions as the
court may determine.
425
Prohibition
P
g
o f
s
l i t t i n
o f
L l d i m
Withdrawa
of claim
(2) A plaintiff may, w h e r e proceedings are withdrawn
under subsection (1), institute a fresh action with the leave o f
court.
16D. A party may, in order to bring a claim or counter
claim within the jurisdiction of a small claims court, a b a n d o n
such part of the claim or counter claim as may be necessary.
Abandonr
"
o l
c l a i m
14.
S e c t i o n eighteen o f t h e p r i n c i p a l A c t is a m e n d e d in
subsection (3) by t h e deletion of the w o r d s " the court may arrest
him for contempt of court" and the substitution therefor of the words
" t h e court may proceed to hear t h e matter and may enter j u d g m e n t
in default o f appearance and defence ".
Amendr
of
section
1 5 . Section nineteen o f the principal A c t is amended by t h e
deletion of the word " c l a i m a n t " and the substitution therefor o f
the word " p l a i n t i f f .
Amenc
of
sectior
16. T h e principal Act is amended by the insertion immediately
after section nineteen of the following n e w section:
Insert
new
sectic
19A. (1) T h e court may, at any time before j u d g m e n t ,
grant leave to amend any notice o f claim or other document
in connection with a case on application by a party:
Provided that an amendment shall not be made where
a party other than the party applying for the amendment
m a y be prejudiced by the a m e n d m e n t .
Amei
of do
by I
cour
(2) An a m e n d m e n t may b e m a d e upon such conditions as
the court may consider appropriate.
17.
Section twenty o f the principal Act is amended —
(a) in paragraph (b) o f subsection (1) by the deletion o f t h e
w o r d s " m a k e an award " and the substitution therefor
of the w o r d s " render a j u d g m e n t " ;
(b) by the deletion o f subsection (2) and t h e substitution
therefor of the following n e w subsection:
An
of
sec
426
No. 14 of 20081
Small Claims Court
(Amendment)
" ( 2 ) A c o m m i s s i o n e r s h a l l , in a j u d g m e n t or d i s m i s s a l , a s t h e
case m a y b e , m a d e by t h e c o m m i s s i o n e r u n d e r this section state
the r e a s o n s upon w h i c h s u c h j u d g m e n t or d i s m i s s a l is b a s e d
a n d shall —
(a) in t h e case o f a monetary j u d g m e n t i n d i c a t e —
(i) when the sum is d u e and
payable;
(ii) that the money shall be paid
directly to the j u d g m e n t
creditor;
(iii) the m a n n e r o f payment,
whether by instalments or by
one lump s u m ; and
(iv) the period o f payment;
(b) in the case of restitution.the period within which
the restitution of property should be m a d e ; and
(c)in the case o f specific performance o f a contract,
the period within which such performance should
be d o n e .
Insertion of
n
e
w
18. T h e principal Act is amended by the insertion immediately
after section twenty of the following n e w section:
section 20A
Review.
2 0 A . A Court may, for good cause s h o w n , on its o w n
variation
motion, and in the absence o f any p a r t y —
correction of
(a) review or vary any j u d g m e n t m a d e by it;
(b) review or vary any j u d g m e n t obtained by fraud or
mistake; and
(c) correct any latent errors in any j u d g m e n t .
Repealand
19.
replacement
of section 21
T h e principal Act is amended by the deletion of section
twenty one and the substitution therefor of the following:
Enforcement
2 1 . T h e provisions of the High Court Act shall apply,
ofjudgement with the necessary m o d i f i c a t i o n s , to the e n f o r c e m e n t o f
Cap. 27
j u d g e m e n t s m a d e under this Act.
Insertion of
new sections
22Aand22B
2 0 . T h e principal Act is amended by the insertion immediately
after section twenty-two of the following n e w sections:
y
6
Review of
2 2 A . (1) A party may, w h e r e a court has adjudicated
by pand of
P
matter, bring the proceedings on review before a panel
Commissioners o f three c o m m i s s i o n e r s within thirty days o f the j u d g e m e n t ,
on any of the following grounds:
Ci
l
u
o n
a
Small Claims Court (Amendment)
[No. 14 of 2008 4 2 7
(a) absence of jurisdiction o f the court;
(b) that the party w a s not given an opportunity to make
representation to the court;
(c) corruption, fraud, malice or interest in the cause, on
the part o f the court; and
(d) gross irregularity with regard to the proceedings:
Provided that an application for review by a party shall
not operate as a stay o f execution.
(2) Subsection (1) shall not prejudice the right o f an
applicant to apply to the panel o f commissioners for a stay
of execution.
2 2 B . (1) A panel o f commissioners may, on review o f a
j u d g m e n t , confirm or set aside a j u d g m e n t upon satisfying itself
that any of the grounds in section twenty two B have been proved.
Powers of
panel of
commissioners
(2) A panel o f c o m m i s s i o n e r s shall, where it sets aside a
j u d g m e n t under subsection ( 1 ) , hear the matter de novo.
2 1 . T h e principal Act is amended by the repeal of section
twenty four and the substitution therefor o f the following n e w
section.
Repeal and
replacement
of section 24
24. (1) A small claims court may issue a writ of execution
against any person w h o has failed to pay a sum d u e and payable
to a party in proceedings before it.
Writ of
execution
(2) A writ of execution issued under this Act shall be in the
prescribed form and shall be executed by t h e Sheriff's office.
( 3 ) All property whatsoever, real or personal, belonging to a
party against w h o m execution is to be enforced, and whether
held in t h e party's o w n name or by another person in trust for
the party or on the party's o w n behalf is liable to attachment and
sale in execution of the j u d g m e n t :
Provided that this subsection shall not apply t o —
(a) the wearing apparel and bedding o f a party
against w h o m execution is to be enforced or
the party's family; and
(b) the tools and implements o f trade of a party
against w h o m execution is to be enforced.
(4) A warrant o f distress shall not apply to property
which is claimed by a third party, or in respect of which
any third party has an interest.
428
No. 14 of 2008]
Small Claims Court
(Amendment)
(5) W h e r e a writ of execution issued under this section is
to be executed at a place more than fifty kilometers from the
place where the small claims court sat, that court may forward
the writ by post, by hand or o t h e r w i s e , to the s h e r i f f s office
within w h o s e territorial jurisdiction it is to be executed.
(6) W h e r e there is n o property to be seized the Court may,
at any time, on application by a party issue a s u m m o n s to the
j u d g m e n t debtor calling on the j u d g m e n t debtor to appear and
be e x a m i n e d respecting the j u d g e m e n t debtor's ability to
satisfy the j u d g m e n t , as to the existence and value of the
j u d g e m e n t debtor's property and o f any debts o w i n g to the
j u d g m e n t debtor, and the j u d g m e n t debtor m a y be examined
as to the s a m e upon oath.
Amendmenl
of
section 25
Amendment
of
section 26
22.
Section twenty-five of the principal Act is amended
(a) by the deletion of paragraphs (a)
and (g);
(b) in paragraph (f) by the deletion of
the word "arbitrator"' and the substitution therefor of the word
"commissioner"; and
(c) by the r e n u m b e r i n g of paragraphs
(b), (c), (d), (e), (f) and (h) as paragraphs (a),(b),
(c),(d),(e)
and (f), respectively.
2 3 . Section twenty-six of the principal Act is amended by the
deletion o f the w o r d s " w a r r a n t of d i s t r e s s " and the substitution
therefor of the w o r d s "writ of execution".
2 4 . Section twenty-seven
o f the principal Act is amended by
the deletion of the w o r d s " a n arbitrator" wherever they appear
and the substitution therefor o f the w o r d s " a c o m m i s s i o n e r " .
Amendment
of
section 27
25. Section twenty-nine
of the principal Act is
amended in subsection (2) by the deletion of the word " c l a i m a n t "
and the substitution therefor o f the word " p l a i n t i f f .
Repeal and
replacement
of section 30
26. T h e principal Act is amended by the repeal of section thirty
and the substitution therefor of the following:
Immunity of
commissioners
and officers
of small
claims courts
3 0 . N o action or other p r o c e e d i n g s shall lie or b e
instituted against a c o m m i s s i o n e r or any other officer of a
small claims court for, or in respect of, any act or t h i n g d o n e
or omitted to be done in good faith in the exercise or purported
exercise of the functions of the officer under this Act.
Small Claims Court (Amendment)
[No. 14 of 2008 429
2 7 . Section thirty-one of the principal Act is amended by the
deletion o f paragraph (a) and the substitution therefor o f t h e
following:
Amendment
of section
31
(a) set out the jurisdiction of a small claims court;.
28.
T h e principal Act is amended by the insertion immediately
after section thirty-one of the following new section:
3 1 A . ( I ) T h e c o n d u c t of c o m m i s s i o n e r s shall be
governed by the Judicial C o d e of C o n d u c t Act, 1999.
(2)Notwithstanding the provisions of subsection (1),
sections sixteen, seventeen and eighteen of the Judicial C o d e
o f C o n d u c t Act, 1999, shall not apply to the conduct o f
commissioners.
Insertion of
new section
3IA
Code of
conduct of
commissioners
Act No. 19
of 1999
Act N o . 19
of 1999
430
i