MMC CBU LS400 ASSIGNMENT 6
1
Misheck Mpiwa Chiwayo
Student Number: 22900461
LS400/ Civil and Criminal Procedure Rules
Term A 2025
Lecturer: Chisanga Mutale
1 April 2025
MMC CBU LS400 ASSIGNMENT 6
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ASSIGNMENT 6
Question
Wilfred Phiri is suing Bambo Mainza for damages arising from a road accident. On a rainy
Monday afternoon of 10 January 2004 Bambo Mainza was riding his motorcycle along
Nsumbu road in Lusaka when suddenly he hit a pothole that was full of rainwater and lost
control. He ran into Wilfred Phiri who was walking on the side of the road with four full
crates of imported pears on his head. As a result of the accident all the pears were
destroyed and Wildred Phiri demanded Bambo Mainza compensate him. The pears cost
K1,650,000. Bambo Mainza refused to pay saying it was not his fault because there was
no way of him knowing that there was a pothole on the road as it was full of water and
there was no warning sign on the road. His motorcycle was also damaged beyond repair.
Bambo Mainza has refused to accept responsibility and has asked you to defend him.
What is your advice to your client?
Assuming you have given the correct legal advice to Bambo Mainza in the previous
discussion/question, you are now required to draft the legal documents you would file that
will best suit your client’s defence in the Zambian Courts.
ANSWER
Introduction
Wilfred Phiri is suing Bambo Mainza for damages arising from a road accident. On
a rainy Monday afternoon of 10 January 2004, Bambo Mainza was riding his motorcycle
along Nsumbu Road in Lusaka when he suddenly hit a pothole filled with rainwater and
lost control. He ran into Wilfred Phiri, who was walking on the side of the road carrying
four full crates of imported pears on his head. As a result of the accident, all the pears
were destroyed, and Wilfred Phiri demanded that Bambo Mainza compensate him. The
pears cost K1,650,000. Bambo Mainza refused to pay, arguing that it was not his fault
because there was no way for him to know about the pothole as it was full of water and
there was no warning sign on the road. His motorcycle was also damaged beyond repair.
Bambo Mainza has refused to accept responsibility and has asked for legal defence.
. To defend Bambo Mainza in the Zambian Courts, I would need to draft several
MMC CBU LS400 ASSIGNMENT 6
3
legal documents as outlined below.
1. Notice of Appearance
2. Statement of Defence
3. Affidavit
4. List of Witnesses
5. Exhibits
.
Below are the various documents that I would need to lodge with the court in defence of
Bambo Mainza:
NOTICE OF APPEARANCE
IN THE SUBORDINATE COURT OF THE
FIRSTCLASS FOR THE DISTRICT
HOLDEN AT LUSAKA
(Civil Jurisdiction)
2004/ CRMP/OO15
BETWEEN:
WILFRED PHIRI
PLAINTIFF
AND
BAMBO MAINZA
DEFENDANT
___________________________________________________________
NOTICE OF APPEARANCE
TAKE NOTICE that the Defendant, Bambo Mainza, hereby enters an appearance in this matter
and intends to defend the claim.
Dated this 1st Day of March 2004
MISHECK MPIWA CHIWAYO
MMC CBU LS400 ASSIGNMENT 6
4
Messrs MMC & ASSOCIATES LEGAL PRACTITIONERS
SUITE 2 MANDA HILL, LUSAKA
+260 100200300
Email: misheck@combinedaccounting.com
Advocates for the Plaintiff
STATEMENT OF DEFENCE
IN THE SUBORDINATE COURT OF THE
FIRSTCLASS FOR THE DISTRICT
HOLDEN AT LUSAKA
(Civil Jurisdiction)
2004/ CRMP/OO15
BETWEEN:
WILFRED PHIRI
PLAINTIFF
AND
BAMBO MAINZA
DEFENDANT
___________________________________________________________
STATEMENT OF DEFENCE
1. Introduction
 The Defendant, Bambo Mainza, denies liability for the damages claimed by
the Plaintiff, Wilfred Phiri.
2. Facts
 On 10 January 2004, the Defendant was riding his motorcycle along Nsumbu
Road in Lusaka.
 Due to heavy rain, the Defendant hit a pothole filled with rainwater, causing
him to lose control of his motorcycle.
 The Defendant collided with the Plaintiff, who was walking on the side of the
road carrying four crates of pears.
3. Denial of Negligence
 The Defendant asserts that the accident was not due to his negligence.
 The Defendant had no way of knowing about the pothole as it was concealed
by rainwater.
MMC CBU LS400 ASSIGNMENT 6
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There were no warning signs indicating the presence of the pothole.
4. Contributory Negligence
 The Defendant submits that the Plaintiff may have contributed to the
accident by walking too close to the road.
 The Plaintiff was carrying a heavy load, which may have impaired his ability
to avoid the accident. The Defendant denies liability for the cost of the pears
and states that the Plaintiff was carrying an unstable load on a public road,
contributing to the accident
5. Damages
 The Defendant's motorcycle was damaged beyond repair, indicating the
severity of the accident.
 The Defendant denies liability for the cost of the pears, as the accident was
unavoidable and not due to his negligence.
6. Conclusion
 WHEREFORE, the Defendant prays that the Plaintiff's claim be dismissed with
costs.

Dated this 1st Day of March 2004.
MISHECK MPIWA CHIWAYO
Messrs MMC & ASSOCIATES LEGAL PRACTITIONERS
SUITE 2 MANDA HILL, LUSAKA
+260 100200300
Email: misheck@combinedaccounting.com
Advocates for the Plaintiff
CERTIFICATE OF URGENCY
IN THE SUBORDINATE COURT OF THE
FIRSTCLASS FOR THE DISTRICT
HOLDEN AT LUSAKA
(Civil Jurisdiction)
2004/ CRMP/OO15
BETWEEN:
WILFRED PHIRI
PLAINTIFF
AND
BAMBO MAINZA
DEFENDANT
MMC CBU LS400 ASSIGNMENT 6
6
__________________________________________________________
CERTIFICATE OF URGENCY
I, MISHECK MPIWA CHIWAYO Advocate for the
Plaintiff herein do hereby certify that this application is of utmost urgency requiring
expedient determination by this Honourable Court.
Dated this
day of
2004
This Certificate was filed by:
MISHECK MPIWA CHIWAYO
Messrs MMC & ASSOCIATES LEGAL
PRACTITIONERS
SUITE 2 MANDA HILL, LUSAKA
+260 100200300
Email: misheck@combinedaccounting.com
Advocates for the Plaintiff
Application for leave to include Third Party Defendants
IN THE SUBORDINATE COURT OF THE
FIRSTCLASS FOR THE DISTRICT
HOLDEN AT LUSAKA
(Civil Jurisdiction)
2004/ CRMP/OO15
BETWEEN:
WILFRED PHIRI
PLAINTIFF
AND
BAMBO MAINZA
DEFENDANT
NOTICE OF MOTION
TAKE NOTICE that the Defendant, Bambo Mainza, will move this Honourable Court on
[Date] at [Time] or as soon thereafter as counsel may be heard for an order granting leave to
include the following third-party defendants:
MMC CBU LS400 ASSIGNMENT 6




7
1. The Local Government
2. The Weather Department
3. The Civil Protection Unit
This 1st Day of March 2004
Issued by:
MISHECK MPIWA CHIWAYO
Messrs MMC & ASSOCIATES LEGAL PRACTITIONERS
SUITE 2 MANDA HILL, LUSAKA
+260 100200300
Email: misheck@combinedaccounting.com
Advocates for the Plaintiff
Penal Notice
TAKE NOTICE THAT in the event that you the within named defendant and agents or
servants elect to disobey this order (or injunction) you will be cited for contempt
and imprisoned for contempt of court.
Affidavit in Support of Notice of Motion
IN THE SUBORDINATE COURT OF THE
FIRSTCLASS FOR THE DISTRICT
HOLDEN AT LUSAKA
(Civil Jurisdiction)
2004/ CRMP/OO15
BETWEEN:
WILFRED PHIRI
PLAINTIFF
AND
BAMBO MAINZA
DEFENDANT
___________________________________________________________
AFFIDAVIT AFFIDAVIT IN SUPPORT OF NOTICE OF MOTION
MMC CBU LS400 ASSIGNMENT 6
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I, Bambo Mainza, of [Address], make oath and state as follows:
1. I am the Defendant in this matter and competent to swear this affidavit.
2. On 10 January 2004, I was involved in a road accident on Nsumbu Road, Lusaka, due to
a pothole filled with rainwater.
3. The Local Government is responsible for maintaining the roads and failed to repair the
pothole or provide warning signs.
4. The Weather Department failed to provide adequate weather warnings that could have
prevented the accident.
5. The Civil Protection Unit failed to take necessary measures to ensure road safety during
adverse weather conditions.
6. It is just and equitable that these parties be included as third-party defendants to
determine their liability in this matter.
Sworn by the said Bambo Mainza at [Location] on this [Date] day of [Month], [Year].
_________________________
Bambo Mainza
BEFORE ME: Adv JOHN ZULU
COMMISSIONER FOR OATHS
Draft Order for Leave to Include Third-Party Defendants
IN THE SUBORDINATE COURT OF THE
FIRSTCLASS FOR THE DISTRICT
HOLDEN AT LUSAKA
(Civil Jurisdiction)
2004/ CRMP/OO15
BETWEEN:
WILFRED PHIRI
AND
PLAINTIFF
MMC CBU LS400 ASSIGNMENT 6
BAMBO MAINZA
9
DEFENDANT
___________________________________________________________
ORDER IN SUPPORT OF NOTICE OF MOTION
UPON READING the Notice of Motion and the Affidavit in Support filed herein,
and upon hearing Counsel for the Defendant,
IT IS HEREBY ORDERED that:
1. The Defendant is granted leave to include the following third-party defendants:
a. The Local Government
b. The Weather Department
c. The Civil Protection Unit
2. The Defendant shall serve the third-party defendants with the necessary documents
within [specified time frame].
Dated this [Date] day of [Month], [Year].
BY THE COURT
_________________________
Judge
Certificate of Exhibit
IN THE SUBORDINATE COURT OF THE
FIRSTCLASS FOR THE DISTRICT
HOLDEN AT LUSAKA
(Civil Jurisdiction)
2004/ CRMP/OO15
BETWEEN:
WILFRED PHIRI
PLAINTIFF
AND
BAMBO MAINZA
DEFENDANT
MMC CBU LS400 ASSIGNMENT 6
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CERTIFICATE OF EXHIBIT
This is the exhibit referred to in the Affidavit of JOHN ROBERTSON marked “JR/EW”
and JOHN BANDA marked “JB/ER”
Dated the
21st
day of
January
2004
BEFORE ME: Adv JOHN ZULU
COMMISSIONER FOR OATHS
EXHIBIT JR/EW: Expert Witness Assessment Report
IN THE SUBORDINATE COURT OF THE
FIRSTCLASS FOR THE DISTRICT
HOLDEN AT LUSAKA
(Civil Jurisdiction)
2004/ CRMP/OO15
BETWEEN:
WILFRED PHIRI
PLAINTIFF
AND
BAMBO MAINZA
DEFENDANT
CERTIFICATE OF EXHIBIT- Expert Witness Assessment Report (JR/EW)
Expert Witness Assessment Report
Case Title: Wilfred Phiri vs. Bambo Mainza
MMC CBU LS400 ASSIGNMENT 6
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Date of Assessment: 10 January 2004
Expert Witness: Engineer John Robertson Field of Expertise: Road Safety and Civil
Engineering (JR/EW)
Introduction: I, Engineer John Robertson, have been retained as an expert witness in the case of
Wilfred Phiri vs. Bambo Mainza. My expertise lies in road safety and civil engineering, with
over thirty years of experience in assessing road conditions and accident causation. This report
provides a detailed assessment of the circumstances surrounding the accident that occurred on 10
January 2004.
Background: On the afternoon of 10 January 2004, Bambo Mainza was riding his motorcycle
along Nsumbu Road in Lusaka during heavy rain. He hit a pothole filled with rainwater, lost
control of his motorcycle, and collided with Wilfred Phiri, who was walking on the side of the
road carrying four crates of pears. The accident resulted in the destruction of the pears and
damage to Mainza's motorcycle.
Assessment of Road Conditions:
1. Pothole Visibility:

The pothole was filled with rainwater, making it invisible to road users.
 Heavy rain significantly reduced visibility, further obscuring the pothole.
2. Lack of Warning Signs:

There were no warning signs indicating the presence of the pothole.
Proper signage could have alerted road users to the hazard, potentially
preventing the accident.
3. Road Maintenance:



Nsumbu Road's maintenance records indicate a history of neglect, with
several complaints about potholes and poor road conditions.
The local authorities failed to address these issues, contributing to the
hazardous conditions.
Accident Causation:
1. Unavoidable Hazard:


The combination of heavy rain and an obscured pothole created an
unavoidable hazard for Bambo Mainza.
Mainza exercised reasonable care while riding his motorcycle but could not
foresee or avoid the pothole.
MMC CBU LS400 ASSIGNMENT 6
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2. Motorcycle Control:


Hitting a pothole at speed can cause a motorcycle to lose control, especially
in adverse weather conditions.
Mainza's loss of control was a direct result of the pothole impact, not due to
any negligence on his part.
Contributory Factors:
1. Plaintiff's Position:

Wilfred Phiri was walking close to the road, which may have contributed to
the collision.
 Carrying a heavy load of pears could have impaired Phiri's ability to react
and avoid the accident.
2. Weather Conditions:

The heavy rain created poor visibility and slippery road conditions, making
it difficult for both parties to navigate safely.
Conclusion: Based on my assessment, the accident was caused by an unavoidable hazard created
by the concealed pothole and adverse weather conditions. Bambo Mainza exercised reasonable
care while riding his motorcycle and could not have foreseen or avoided the pothole. The lack of
warning signs and poor road maintenance by local authorities significantly contributed to the
accident. Therefore, Mainza should not be held liable for the damages claimed by Wilfred Phiri.
Recommendations:



Improved road maintenance and timely repairs to address potholes and other hazards.
Installation of proper warning signs to alert road users to potential dangers.
Enhanced safety measures during adverse weather conditions to prevent similar
accidents.
Expert Witness Signature:
JR, JR Engineering Consultants, 2 Avondale Rd, Avondale,
th
Lusaka, +260 3699 00011, this 15 Day of January 2004
EXHIBIT JB/ER: Eyewitness Report
IN THE SUBORDINATE COURT OF THE
FIRSTCLASS FOR THE DISTRICT
2004/ CRMP/OO15
MMC CBU LS400 ASSIGNMENT 6
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HOLDEN AT LUSAKA
(Civil Jurisdiction)
BETWEEN:
WILFRED PHIRI
PLAINTIFF
AND
BAMBO MAINZA
DEFENDANT
CERTIFICATE OF EXHIBIT- Eyewitness Report (JB/ER)
Name: John Banda
Address: 1 Kakwele Lodge, Lusaka
Occupation: Lodge attendant
Date of Report: [Date]
1. Introduction:
I, John Banda, of [Eyewitness's Address], make this statement in support of Bambo
Mainza's defence in the case brought against him by Wilfred Phiri. I was present at the
scene of the accident on Nsumbu Road, Lusaka, on the afternoon of 10 January 2004.
2. Observation of the Incident:
On the afternoon of 10 January 2004, I was walking along Nsumbu Road when I witnessed
the accident involving Bambo Mainza and Wilfred Phiri. It was raining heavily, and the
visibility was poor due to the rain.
3. Condition of the Road:
The road was flooded with rainwater. The pothole that caused the accident was completely
submerged in water, making it invisible to anyone using the road. There were no warning
signs or barriers indicating the presence of the pothole.
4. Actions of Bambo Mainza:
Bambo Mainza was riding his motorcycle at a slow speed, as appropriate for the weather
conditions. He suddenly hit the pothole which was not visible to anyone. Upon hitting the
pothole, he lost control of his motorcycle and collided with Wilfred Phiri, who was walking
on the side of the road but close to vehicular path.
5. Conclusion:
Based on my observations, I believe that Bambo Mainza was not at fault for the accident.
The lack of road maintenance and the adverse weather conditions were the primary causes
of the incident. I respectfully submit this report in support of Bambo Mainza's defence.
_________________________
John Banda
MMC CBU LS400 ASSIGNMENT 6
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BEFORE ME: Adv JOHN ZULU
COMMISSIONER FOR OATHS
Legislation:
1. Roads and Road Traffic Act, Chapter 464 of the Laws of Zambia:
2. The High Court Act, Chapter 27 of the Laws of Zambia:
3. The Law Reform (Limitation of Actions) Act, Chapter 72 of the Laws of Zambia:
Court Orders and Rules:
1. Supreme Court of Zambia Rules, Chapter 25 of the Laws of Zambia:
2. Rules of the Supreme Court of England (White Book 1999 Edition):
Relevant Cases:
1. Kumar v. Mutale (Appeal 35 of 2011) [2013] ZMSC 8:

This case discusses the principles of negligence and contributory
negligence, which are relevant to assessing liability in road accidents
2. Madison General Insurance Company Ltd. v. Avrill Cornhill Michael Kakoma
(Appeal No. 19/2017):

This case involves issues of road traffic accidents, and the responsibilities
of parties involved, providing insights into how courts assess such cases
Conclusion
Based on the facts presented, Bambo Mainza's defence hinges on several key
arguments as outlined above, being, challenging negligence blame, countering with
MMC CBU LS400 ASSIGNMENT 6
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contributory negligence, bad weather and road conditions. The evidence provided above
supports these arguments, and as such Bambo Mainza should not be liable for Wilfred
Phiri’s loss. However, I believe both the plaintiff and the defendant should be
compensated by the insurance failure which they should claim for compensation from the
third-party defendants cited above.
By presenting the above well-documented and compelling case, Bambo Mainza
can demonstrate that the accident was unavoidable and not due to his negligence,
thereby seeking dismissal of Wilfred Phiri's claim for damages.
References
CBU LS400 Lectures 1,2, 3,4, 5 & 6 Mutale, C.
Subordinate Court Act, Chapter 28 of the Laws of Zambia Rules ORDERS
High Court Act, Chapter 27 of the Laws of Zambia
Roads and Road Traffic Act, Chapter 464 of the Laws of Zambia:
The High Court Act, Chapter 27 of the Laws of Zambia:
The Law Reform (Limitation of Actions) Act, Chapter 72 of the Laws of Zambia:
Court Orders and Rules:
Supreme Court of Zambia Rules, Chapter 25 of the Laws of Zambia:
Rules of the Supreme Court of England (White Book 1999 Edition):