VOLUME 6

CONTENTS Chapter 68. Chapter 69. Chapter 70. Chapter 71. Defamation Act Misrepresentation Act Occupiers' Liability Act State Proceedings Act

Chapter 72. Law Reform (Limitation of Action, etc.) Act Chapter 73. Act Law Reform (Frustrated Contracts) (Miscellaneous

Chapter 74. Law Reform Provisions) Act Chapter 75.

Authentication of Documents Act (Reciprocal

Chapter 76. Foreign Judgments Enforcement) Act Chapter 77. Chapter 78. Act Debtors Act

Civil Courts (Attachment of Debts)

Chapter 79. Service of Process and Execution of Judgments Act Chapter 80. Chapter 81. Chapter 82. Chapter 83. Act Vacant Judgments Act Bankruptcy Act Preferential Claims in Bankruptcy

Chapter 84. Chapter 85. Chapter 86.

Deeds of Arrangement Act Vacant Vacant

CHAPTER 68 THE DEFAMATION ACT

ARRANGEMEMT OF SECTIONS

Section 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. Short title Interpretation Slander affecting official, professional or business reputation Slander of women Slander of title, etc. Justification Fair comment Newspaper reports of proceedings in court privileged Qualified privilege of newspapers Plea of publication without malice and negligence, with apology Unintentional defamation Mitigation of damages Agreements for indemnity Limitation on privilege at elections Consolidation of actions Proceedings in respect of publication of authenticated reports Extracts from authenticated reports Wireless broadcasting

19.

Proceedings affected and savings

SCHEDULE-Newspaper statements having qualified privilege

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 1964 497of 1964 Statutory Instrument 72 of 1964

1.

This Act may be cited as the Defamation Act.

Short title

2. In this Act, unless the context otherwise requires"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)

Interpretation

3. In an action for slander in respect of words calculated to disparage Slander affecting the plaintiff in any office, profession, calling, trade or business held or official, carried on by him at the time of the publication, it shall not be necessary professional or

business reputation

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. 4. In an action for slander in respect of words imputing unchastity or Slander of women adultery to any woman or girl, it shall not be necessary to allege or prove special damage: 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(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 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 Justification 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. 7. In an action for libel or slander in respect of words consisting partly Fair comment 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.
Slander of title, etc.

8. A fair and accurate report in any newspaper of proceedings publicly Newspaper reports heard before any court exercising judicial authority within Zambia shall, of proceedings in court privileged if published contemporaneously with such proceedings, be absolutely privileged: Provided that nothing in this section shall authorise the publication of any blasphemous or indecent matter.
Qualified privilege 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 of newspapers shall be privileged unless the publication is proved to be made with malice.

(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 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
Plea of publication without malice and negligence, with apology

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. (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 Unintentional another person may, if he claims that the words were published by him defamation innocently in relation to that other person, make an offer of amends under this section; and in any such case(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 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 Mitigation of damages 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. (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 Agreements for for libel in respect of the publication of any matter shall not be unlawful indemnity 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. 14. A defamatory statement published by or on behalf of a candidate in Limitation on any election to any local authority or to the National Assembly shall not privilege at be deemed to be published on a privileged occasion on the ground that it elections 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) 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. (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 Proceedings in respect of publication of authenticated reports Consolidation of actions

section. (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 finally put an end to, determined and superseded by virtue of this section. (As amended by G.N. No. 303 of 1964) Extracts from 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 authenticated shall be a good defence to show that the matter in question was in fact an reports extract from or an abstract of an authenticated report and that the publication thereof was bona fide and without malice. 18. (1) For the purposes of the law of libel and slander, the publication Wireless of words by wireless broadcasting shall be treated as publication in a broadcasting permanent form. (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 Cap. 154 by the Zambia National Broadcasting Corporation Act.

19. (1) This Act applies for the purposes of any proceedings begun after Proceedings the commencement of this Act, whenever the cause of action arose, but affected and does not affect any proceedings begun before its commencement. 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 PRIVILEGE PART I

STATEMENTS

HAVING

QUALIFIED

STATEMENTS PRIVILEGED EXPLANATION OR CONTRADICTION

WITHOUT

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. (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. 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 Cap. 388 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. 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. (As amended by S.I. No. 72 of 1964)

CHAPTER 69 THE MISREPRESENTATION ACT

ARRANGEMENT OF SECTIONS

Section 1. 2. 3. 4. 5. 6. Short title Removal of certain bars to rescission for innocent misrepresentation Damages for misrepresentation Avoidance of certain provisions excluding liability for misrepresentation Amendment of the Sale of Goods Act, 1893, as in force in Zambia Saving for past transactions

CHAPTER 69

MISREPRESENTATION 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.

25of 1968

Short title

2. Where a person has entered into a contract after a misrepresentation Removal of certain bars to rescission has been made to him, and(a) or (b) the misrepresentation has become a term of the contract; the contract has been performed;
for innocent misrepresentation

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).
Damages for 3. (1) Where a person has entered into a contract after a misrepresentation has been made to him by another party thereto, and misrepresentation as a result thereof he has 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.

(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 Avoidance of commencement of this Act) contains a provision which would exclude certain provisions or restrictexcluding liability for (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;

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. 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". (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 Saving for past or contract of sale which is made before the commencement of this Act. transactions Amendment of the Sale of Goods Act, 1893, as in force in Zambia

CHAPTER 70 THE OCCUPIERS' LIABILITY ACT

ARRANGEMENT OF SECTIONS

Section 1. 2. 3. 4. 5. Short title Preliminary Duty of occupier of premises Effect of contract on occupier's liability to third party Landlord's liability by virtue of obligation to repair

6. 7.

Implied terms in contracts Application to the Republic

CHAPTER 70

OCCUPIERS' LIABILITY

33of 1963 27of 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 Preliminary 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. (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-

(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 Duty of of care", to all his visitors, except in so far as he is free to and does occupier of extend, restrict, modify or exclude his duty to any visitor or visitors by premises agreement or otherwise. (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 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. (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 Effect of contract on occupier's liability to third party

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). (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 premises as regards that landlord or any superior landlord of the premises, whether Landlord's liability by virtue of obligation to repair

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 Implied terms premises in exercise of a right conferred by contract with a person in contracts 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. (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 Application to Republic in tort, shall not bind the Republic further than the Republic is the Republic made liable in tort by the State Proceedings Act and that Act, and in Cap. 71 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)

CHAPTER 71 THE STATE PROCEEDINGS ACT

ARRANGEMENT OF SECTIONS

PART I PRELIMINARY Section 1. 2. Short title Interpretation

PART II SUBSTANTIVE LAW 3. 4. 4A. 5. Liability of State in contract Liability of State in tort Restriction on orders against State. Provisions as to industrial property

6. Application of law as to indemnity, contribution, joint and several tortfeasors and contributory negligence 7. 8. laws Provisions relating to Defence Force Saving in respect of acts done under prerogative and written

PART III JURISDICTION AND PROCEDURE

9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19.

Civil proceedings in High Court Civil proceedings in subordinate courts Interpleader Parties to proceedings Service of documents Venue and related matters Removal and transfer of proceedings Nature of relief Costs in civil proceedings to which State is a party Appeals and stay of execution Scope of Part III

PART IV JUDGMENTS AND EXECUTION Section 20. 21. 22. 23. 24. Interest Satisfaction of orders against State No judgment by default without leave Execution by State Attachment of moneys payable by State

PART V MISCELLANEOUS AND SUPPLEMENTAL 25. 26. 27. 28. 29. 30. 31. Discovery Exclusion of proceedings in rem against State Limitation of actions Application to State of certain statutory provisions Rules of court Repeal and transitional provisions Savings

CHAPTER 71

STATE PROCEEDINGS

27of 1965 38of 1970 22of 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 PRELIMINARY 1. This Act may be cited as the State Proceedings Act. Short title Interpretation

2. (1) In this Act, unless the context otherwise requires"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; "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; "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. (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)

Cap. 25 Cap. 27 Cap. 28

Cap. 28

PART II SUBSTANTIVE LAW 3. Subject to the provisions of this Act, the State shall be subject to those 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 Liability of all those liabilities in tort to which, if it were a private person of full age State in tort and capacity, it would be subject(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 Restriction on make an order for damages or compensation against the State in respect court orders of anything done under or in the execution of any restriction or detention against State order signed by the President: Provided that nothing in this section shall apply to a claim for damages or compensation arising from(i) (ii) physical or mental ill-treatment; 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 Cap. 400 affect the rights of any Government department under the Patents Act or Cap. 402 the Registered Designs Act. (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.

*(2) Without prejudice to the generality of subsection (1), Part V of the Cap. 74 Law Reform (Miscellaneous Provisions) Act shall bind the State. * 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 Cap. 74 the Law Reform (Miscellaneous Provisions) Act shall bind the State. * These subsections are deemed to have come into force on 14th April, 1967. (As amended by No. 38 of 1970) 7. (1) Nothing done or omitted to be done by a member of the Defence Provisions Force while on duty as such shall subject either him or the State to relating to liability in tort for causing the death of another person, in so far as the Defence Force death or personal injury is due to anything suffered by that other person while he is a member of the Defence Force if(a) at the time that thing is suffered by that other person, he is either on duty as a member of the Defence Force or is, though not on duty as such, on any land, premises, ship, aircraft or vehicle for the time being used for the purposes of the Defence Force; and (b) the Minister responsible for finance certifies that his suffering that thing has been or will be treated as attributable to service for the purposes of entitlement to a gratuity or pension under any written law relating to the disablement or death of members of the Defence Force: Provided that this subsection shall not exempt a member of the Defence

Force from liability in tort in any case in which the court is satisfied that the act or omission was not connected with the execution of his duties as a member of the Defence Force. (2) No proceedings in tort shall lie against the State for death or personal injury due to anything suffered by a member of the Defence Force if(a) that thing is suffered by him in consequence of the nature or condition of any such land, premises, ship, aircraft or vehicle as aforesaid, or in consequence of the nature or condition of any equipment or supplies used for the purposes of the Defence Force; and *These subsections are deemed to have come into force on 14th April, 1967. (b) the Minister responsible for finance certified as mentioned in paragraph (b) of subsection (1); nor shall any act or omission of a public officer subject him to liability in tort for death or personal injury in so far as the death or personal injury is due to anything suffered by a member of the Defence Force being a thing as to which the conditions aforesaid are satisfied. (3) The President or a Minister authorised by him if satisfied that it is the fact(a) that a person was or was not on any particular occasion on duty as a member of the Defence Force; or (b) that at any particular time any land, premises, ship, aircraft, vehicle, equipment or supplies was or was not, or were or were not, used for the purpose of the Defence Force; may issue a certificate certifying that to be the fact, and any such certificate shall, for the purposes of this section, be conclusive as to the fact which it certifies. 8. (1) Nothing in this Part shall extinguish or abridge any powers or authorities which, if this Act had not been passed, would have been exercisable by virtue of the provisions of section 18 of the Zambia Independence Order, 1964, or any powers or authorities conferred on the State by any written law, and, in particular, nothing in this Part shall extinguish or abridge powers or authorities exercisable by the State, whether in time of peace or war, for the purposes of the defence of Saving in respect of acts done under prerogative and written laws

Zambia or of training, or maintaining the efficiency of the Defence Force. (2) Where in any proceedings under this Act it is material to determine whether anything was properly done or omitted to be done for any of the purposes of subsection (1), the President or a Minister authorised by him may, if satisfied that the act or omission was necessary for any such purpose, issue a certificate to the effect that the act or omission was necessary for that purpose; and the certificate shall, in those proceedings, be conclusive as to the matter so certified.

PART III JURISDICTION AND PROCEDURE 9. Subject to the provisions of this Act, all civil proceedings by or against the State in the High Court shall be instituted and proceeded with in accordance with rules of court and not otherwise. 10. (1) Subject to the provisions of this Act, and to any written law limiting the jurisdiction of a subordinate court (whether by reference to the subject-matter of the proceedings to be brought or the amount sought to be recovered in the proceedings or otherwise), any civil proceedings against the State may be instituted in a subordinate court. (2) Any proceedings by or against the State in a subordinate court shall be instituted and proceeded with in accordance with rules of court and not otherwise. 11. The State may obtain relief by way of interpleader proceedings, and may be made a party to such proceedings, in the same manner in which a subject may obtain relief by way of such proceedings or be made a party thereto, and may be made a party to such proceedings notwithstanding that the application for relief is made by a sheriff or other like officer; and all rules of court relating to interpleader proceedings shall, subject to the provisions of this Act, have effect accordingly. Interpleader Civil proceedings in High Court Civil proceedings in subordinate courts

12. (1) Subject to the provisions of any other written law, civil proceedings by or against the State shall be instituted by or against the Attorney-General as the case may be. (2) No proceedings instituted in accordance with this Part by or against the Attorney-General shall abate or be affected by any change in the person holding the office of Attorney-General.

Parties to proceedings

13. All documents required to be served on the State for the purpose of Service of or in connection with any civil proceedings by or against the State shall documents be served on the officer of the Attorney-General's Chambers having the conduct of such proceedings, or, if a legal practitioner in private practice is acting for the State in such proceedings, on such legal practitioner. 14. (1) In any case in which civil proceedings against the State in the Venue and related matters High Court are instituted by the issue of a plaint out of a District Registry, the State may enter an appearance either in the District Registry or in the Principal Registry, and, if an appearance is entered in the Principal Registry, all steps in relation to proceedings up to the trial shall be taken in Lusaka. (2) The trial of any civil proceedings by or against the State in the High Court shall be held at the High Court in Lusaka unless the court, with the consent of the State, otherwise directs. (3) Where the State refuses its consent to a direction under subsection (2), the court may take account of the refusal in exercising its power in regard to costs. (4) In this section"District Registry" means a District Registry directed to be established under the High Court Act; "Principal Registry" means the office of the Registrar of the High Court at Lusaka. 15. (1) If, in a case where proceedings are instituted against the State in Removal and a subordinate court, an application in that behalf is made by the State to transfer of the High Court, and there is produced to the court a certificate of the proceedings Cap. 27

Attorney-General to the effect that the proceedings may involve an important question of law, or may be decisive of other cases arising out of the same matter, or are for other reasons more fit to be tried in the High Court, the proceedings shall be removed into the High Court. (2) Where any proceedings have been removed into the High Court on the production of such a certificate as is mentioned in subsection (1), and it appears to the court by whom the proceedings are tried that the removal has occasioned additional expense to the person by whom the proceedings are brought, the court may take account of the additional expense so occasioned in exercising its powers in regard to the award of costs. (3) Without prejudice to the right of the State under the preceding provisions of this section, the provisions of any written law relating to the removal or transfer of proceedings from a subordinate court to the High Court or the transfer of proceedings from the High Court to a subordinate court shall apply in relation to proceedings against the State: Provided that an order for the transfer to a subordinate court of any proceedings against the State in the High Court shall not be made without the consent of the State. 16. (1) In any civil proceedings by or against the State the court shall, Nature of relief subject to the provisions of this Act, have power to make all such orders as it has power to make in proceedings between subjects, and otherwise to give such appropriate relief as the case may require: Provided that(i) where in any proceedings against the State any such relief is sought as might in proceedings between subjects be granted by way of injunction or specific performance, the court shall not grant an injunction or make an order for specific performance, but may in lieu thereof make an order declaratory of the rights of the parties; and (ii) in any proceedings against the State for the recovery of land or other property, the court shall not make an order for the recovery of the land or the delivery of the property, but may in lieu thereof make an order declaring that the plaintiff is entitled as against the State to the land or property or to the possession thereof.

(2) The court shall not in any civil proceedings grant any injunction or make any order against a public officer if the effect of granting the injunction or making the order would be to give any relief against the State which could not have been obtained in proceedings against the State. 17. In any civil proceedings or arbitration to which the State is a party, the costs of and incidental to the proceedings shall be awarded in the same manner and on the same principles as in cases between subjects, and the court or arbitrator shall have power to make an order for the payment of costs by or to the State accordingly: Provided that(i) in the case of proceedings to which by reason of any written law or otherwise the Attorney-General, or any other public officer as such is authorised to be made a party, the court or arbitrator shall have regard to the nature of the proceedings and the character and circumstances in which the Attorney-General or public officer appears, and may in the exercise of its or his discretion order any other party to the proceedings to pay the costs of the Attorney-General or officer, whatever may be the result of the proceedings; and (ii) nothing in this section shall affect the power of the court or arbitrator to order, or any written law providing for, the payment of costs out of any particular fund or property, or any written law expressly relieving any Government department or public officer of the liability to pay costs. 18. Subject to the provisions of this Act, all written laws relating to appeals and stay of execution shall, with any necessary modifications, apply to civil proceedings by or against the State as they apply to proceedings between subjects. Appeals and stay of execution Costs in civil proceedings to which State is a party

19. (1) Subject to the provisions of this section, any reference in this Scope of Part Part to civil proceedings by the State shall be construed as a reference to III the following proceedings only: (a) proceedings for the enforcement or vindication of any right or the obtaining of any relief which, if this Act had not been passed, might have been enforced or vindicated or obtained by an action at the suit of any Government department or any public officer as such;

(b) all such proceedings as the State is entitled to bring by virtue of this Act; and the expression "civil proceedings by or against the State" shall be construed accordingly. (2) Subject to the provisions of this section, any reference in this Part to civil proceedings against the State shall be construed as a reference to the following proceedings only: (a) proceedings for the enforcement or vindication of any right or the obtaining of any relief which, if this Act had not been passed, might have been enforced or vindicated or obtained by an action against the Attorney-General or any public officer as such; and (b) all such proceedings as any person is entitled to bring against the State by virtue of this Act; and the expression "civil proceedings by or against the State" shall be construed accordingly. (3) Notwithstanding anything in the preceding provisions of this section, the provisions of this Part shall not have effect with respect to any of the following proceedings, that is to say: (a) proceedings brought by the Attorney-General on the relation of some other person; (b) proceedings relating to charitable trusts by or against the Attorney-General.

PART IV JUDGMENTS AND EXECUTION 20. The Minister responsible for finance may allow and cause to be Interest paid out of the general revenues of the Republic to any person entitled by a judgment under this Act to any money or costs, interest thereon at a rate not exceeding six per centum from the date of the judgment until the

money or costs are paid. 21. (1) Where in any civil proceedings by or against the State, or in any Satisfaction of proceedings in connection with any arbitration to which the State is a orders against party, any order (including an order for costs) is made by any court in State favour of any person against the State or against a public officer as such, the proper officer of the court shall, on an application in that behalf made by or on behalf of that person at any time after the expiration of twenty-one days from the date of the order or, in case the order provides for the payment of costs and the costs require to be taxed, at any time after the costs have been taxed, whichever is the later, issue to that person a certificate in the prescribed form containing particulars of the order: Provided that, if the court so directs, a separate certificate shall be issued with respect to the costs (if any) ordered to be paid to the applicant. (2) A copy of any certificate issued under this section may be served by the person in whose favour the order is made upon the Attorney-General. (3) If the order provides for the payment of any money by way of damages or otherwise, or of any costs, the certificate shall state the amount so payable, and the Permanent Secretary, Ministry of Finance, shall, subject as hereinafter provided, pay to the person entitled or to the legal practitioner acting for such person in the proceedings to which the order relates the amount appearing by the certificate to be due to him together with the interest, if any, allowed under section twenty: Provided that the court by which any such order as aforesaid is made, or any court to which an appeal against the order lies, may direct that, pending an appeal or otherwise, payment of the whole of any amount so payable, or any part thereof, shall be suspended and, if the certificate has not been issued, may order any such directions to be inserted therein. (4) Save as aforesaid, no execution or attachment or process in the nature thereof shall be issued out of any court for enforcing payment by the State of any such money or costs as aforesaid, and no person shall be individually liable under any order for the payment by the State, or any public officer as such, of any such money or costs.

(5) This section shall apply both in relation to proceedings pending at the commencement of this Act and in relation to proceedings instituted thereafter. 22. In any proceedings against the State under this Act, judgment shall No judgment by not be entered against the State in default of appearance or pleading default without without the leave of the court to be obtained on application of which at leave least fourteen clear days' notice has been given to the Attorney-General, or, if a legal practitioner in private practice is acting for the State in the proceedings, to such legal practitioner. 23. Subject to the provisions of this Act, any order made in favour of the State against any person in any civil proceedings to which the State is a party may be enforced in the same manner as an order made in an action between subjects and not otherwise. Execution by State

24. (1) Where any money is payable by the State to some person who, Attachment of moneys payable under any order of any court, is liable to pay any money to any other by State person, and that other person would, if the money so payable by the State were money payable by a subject, be entitled under rules of court to obtain an order for attachment thereof as a debt due or accruing due, or an order for the appointment of a sequestrator or receiver to receive the money on his behalf, the High Court may, subject to the provisions of this Act and in accordance with rules of court, make an order restraining the first-mentioned person from receiving that money and directing payment thereof to that person or to the sequestrator or receiver: Provided that no such order shall be made in respect of(i) any wages or salary payable to any public officer as such; (ii) any money which is subject to the provisions of any written law prohibiting or restricting assignment or charging or taking in execution; or (iii) any money payable by the State to any person on account of a deposit in the Post Office Savings Bank. (2) The provisions of subsection (1) shall, so far as they relate to forms

of relief falling within the jurisdiction of a subordinate court, have effect in relation to subordinate courts as they have effect in relation to the High Court.

PART V MISCELLANEOUS AND SUPPLEMENTAL 25. (1) Subject to and in accordance with rules of court(a) in any civil proceedings in the High Court or a subordinate court to which the State is a party, the State may be required by the court to make discovery of documents and produce documents for inspection; and (b) in any such proceedings as aforesaid, the State may be required by the court to answer interrogatories: Provided that this section shall be without prejudice to any rule of law which authorises or requires the withholding of any document or the refusal to answer any question on the ground that the disclosure of the document or the answering of the question would be injurious to the public interest. (2) Any order of the court made under the powers conferred by paragraph (b) of subsection (1) shall direct by what public officer the interrogatories are to be answered. (3) Without prejudice to the proviso to subsection (1), any rules made for the purposes of this section shall be such as to secure that the existence of a document will not be disclosed if, in the opinion of a Minister, it would be injurious to the public interest to disclose the existence thereof. 26. (1) Nothing in this Act shall authorise proceedings in rem in respect of any claim against the State, or the arrest, detention or sale of any ship or aircraft, or of any cargo or other property belonging to the State, or give to any person any lien on any such ship, aircraft, cargo or other property. Exclusion of proceedings in rem against State Discovery

(2) Where proceedings in rem have been instituted in the High Court or in a subordinate court against any such ship, aircraft, cargo or other property, the court may, if satisfied, either on an application by the plaintiff for an order under this subsection or an application by the State to set aside the proceedings, that the proceedings were so instituted by the plaintiff in the reasonable belief that the ship, aircraft, cargo or other property did not belong to the State, order that the proceedings shall be treated as if they were in personam duly instituted against the State in accordance with the provisions of this Act or duly instituted against any other person whom the court regards as the proper person to be sued in the circumstances, and that the proceedings shall continue accordingly. (3) Any order made in accordance with the provisions of subsection (2) may be made upon such terms, if any, as the court thinks just; and where the court makes any such order it may make such consequential orders as it thinks expedient. 27. Nothing in this Act shall prejudice the right of the State to rely upon any written law relating to the limitation of time for bringing proceedings against public authorities. 28. This Act shall not prejudice the right of the State to take advantage of the provisions of any written law although not named therein; and it is hereby declared that in any civil proceedings against the State the provisions of any written law which could, if the proceedings were between subjects, be relied upon by the defendant as a defence to the proceedings, whether in whole or in part, or otherwise, may, subject to any express provisions to the contrary, be so relied upon by the State. 29. (1) Any power to make rules of court shall include power to make rules for the purpose of giving effect to the provisions of this Act, and any such rules may contain provisions to have effect in relation to any proceedings by or against the State in substitution for or by way of addition to any of the provisions of the rules applying to proceedings between subjects. (2) Provision shall be made by rules of court with respect to the following matters: Limitation of actions

Application to State of certain statutory provisions

Rules of court

(a) for providing for service of process, or notice thereof, in the case of proceedings by the State against persons, whether citizens of Zambia or not, who are not resident in Zambia; (b) for securing that where any civil proceedings are brought against the State in accordance with the provisions of this Act the plaintiff shall, before the State is required to take any step in the proceedings, provide the State with such information as the State may reasonably require as to the circumstances in which it is alleged that the liability of the State has arisen and as to the Government departments and public officers concerned; (c) for excepting proceedings brought against the State from the operation of any rule of court providing for summary judgment without trial, and for enabling any such proceedings to be put, in proper cases, into any special list which may be kept for the trial of short causes in which leave to defend is given under any such rule of court as aforesaid; (d) for enabling evidence to be taken on commission in proceedings by or against the State; (e) for providing-

(i) that a person shall not be entitled to avail himself of any set-off or counter-claim in any proceedings by the State for the recovery of taxes, duties or penalties, or to avail himself in proceedings of any other nature by the State of any set-off or counter-claim arising out of a right or claim to repayment in respect of any taxes, duties or penalties; (ii) that a person shall not be entitled without the leave of the court to avail himself of any set-off or counter-claim in any proceedings by the State; and (iii) that the State shall not be entitled to avail itself of any set-off or counter-claim without the leave of the court. (3) Provisions may be made by rules of court for regulating any appeals to the High Court or to the Supreme Court and whether by way of case stated or otherwise, under any written law relating to the revenue, and any rules made under this subsection may revoke any written law or rules in force immediately before the commencement of this Act so far as they regulate any such appeals and may make provision for any matters for which provision was made by any written law or rules so in force.

30. The Crown Proceedings Act, Chapter 242 of the 1953 Edition of the Laws, is hereby repealed:

Repeal and transitional provisions

Provided that any proceedings under the said Act pending before any court at the commencement of this Act shall be continued and concluded, and any judgment given may be enforced, in every respect as if the said Act had remained in force. 31. (1) Except as therein otherwise expressly provided, nothing in this Savings Act shall(a) subject the State to any greater liabilities in respect of the acts or omissions of any independent contractor employed by the State than those to which the State would be subject in respect of such acts or omissions if it were a private person; or (b) affect any rules of evidence or any presumption relating to the extent to which the State is bound by any written law; or (c) affect any right of the State to demand a trial at bar or to control or otherwise intervene in proceedings affecting its rights, property or profits. (2) Nothing in this Act shall authorise a public officer as such to take proceedings against the State under or in accordance with this Act which he as such a public officer could not have taken if this Act had not been passed. (3) Where any property vests in the State by virtue of any rule of law which operated independently of the acts or the intentions of the State, the State shall not by virtue of this Act be subject to any liabilities in tort by reason only of the property being so vested; but the provisions of this subsection shall be without prejudice to the liabilities of the State under this Act in respect of any period after the State or any person acting for the State has in fact taken possession or control of any such property, or entered into occupation thereof.

(4) This Act shall not operate to limit the discretion of the court to grant relief by way of mandamus in cases in which such relief might have been granted before the commencement of this Act, notwithstanding that by reason of the provisions of this Act some other further remedy is available. (5) Save as is provided in the Postal Services Act, no proceedings shall Cap. 470 lie against the State or its servants or agents(a) by reason of anything done or omitted to be done or any damage or loss, whether negligent or otherwise, in relation to or in respect of any postal packet or telegram; (b) in respect of the amount of a money order;

(c) in respect of the bona fide payment of any sum of money under that Act; or (d) by reason of anything lawfully done under that Act or any other written law. (6) In subsection (5), the expressions "money order", "postal article" and "telegram" have the meanings respectively assigned to them in the Postal Services Act. Cap. 470

CHAPTER 72 THE LAW REFORM (LIMITATION OF ACTIONS, ETC.) ACT

ARRANGEMENT OF SECTIONS

Section 1. 2. 3. Short title Non-application of Public Authorities Protection Act, 1893, and section 21 of Limitation Act, 1939 Amendment of Limitation Act, 1939, as respects personal

injury actions 4. 5. 6. Amendment of Fatal Accidents Act, 1846 Application to the Republic Transitional provisions

CHAPTER 72

LAW REFORM (LIMITATION OF ACTIONS, ETC.) An Act to assimilate in certain respects the law applicable to proceedings against public authorities (including the Republic) and persons acting in pursuance or execution or intended execution of enactments to that applicable in other cases; to amend the law as to the time limited for bringing legal proceedings and as to the survival of causes of action against the estates of deceased persons; and to provide for purposes connected with the matters aforesaid. [26th April, 1963] 1. This Act may be cited as the Law Reform (Limitation of Actions, etc.) Act.

13of 1963 26of 1967 Government Notice 497 of 1964 Statutory Instrument 72 of 1964

Short title

2. The Public Authorities Protection Act, 1893, and section 21 of the Non-application Limitation Act, 1939, of the United Kingdom, shall cease to have effect of Public Authorities in the Republic. Protection Act, 1893, and section 21 of Limitation Act, 1939 3. In its application to the Republic, the Limitation Act, 1939, of the United Kingdom, is hereby amended as follows: Amendment of Limitation Act, (a) by the insertion of the following proviso at the end of subsection 1939, as respects (1) of section 2: personal injury Provided that, in the case of actions for damages for actions negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by

the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to any person, this subsection shall have effect as if for the reference to six years there were substituted a reference to three years. (b) by the addition at the end of section 22 of the following subsection: (2) In the case of actions for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to any person(a) the preceding provisions of this section shall have effect as if for the words "six years" there were substituted the words "three years"; and (b) this section shall not apply unless the plaintiff proves that the person under the disability was not, at the time when the right of action accrued to him, in the custody of a parent. (c) by the insertion in subsection (1) of section 31 after the definition of "personal property" of the following definition: "personal injuries" includes any disease and any impairment of a person's physical or mental condition. 4. In its application to the Republic, section 3 of the Fatal Accidents Act, 1846, of the United Kingdom, is hereby amended by the substitution of the words "three years" for the words "twelve calendar months". 5. (1) This Act shall bind the Republic. Amendment of Fatal Accidents Act, 1846

Application to the Republic

(2) No proceedings shall lie against the Republic in respect of loss or damage to registered inland postal packets unless the proceedings are begun within the twelve months beginning with the date on which the packet in question was posted. (As amended by S.I. No. 72 of 1964) 6. (1) The time for bringing proceedings in respect of a cause of action Transitional which arose before the commencement of this Act shall, if it has not provisions then already expired, expire at the time when it would have expired

apart from the provisions of this Act or at the time when it would have expired if all the provisions of this Act had at all material times been in force, whichever is the later. (2) Save as aforesaid, nothing in this Act shall affect any action or proceedings if the cause of action arose before the commencement thereof. (As amended by No. 26 of 1967)

CHAPTER 73 THE LAW REFORM (FRUSTRATED CONTRACTS) ACT

ARRANGEMENT OF SECTIONS

Section 1. 2. 3. 4. Short title Interpretation Adjustments of rights and liabilities of parties to frustrated contracts Provisions as to application of this Act

CHAPTER 73

LAW REFORM (FRUSTRATED CONTRACTS)

27of 1963 Government An Act to amend the law relating to the frustration of contracts; and to Notice provide for matters incidental thereto. 497of 1964 Statutory [19th July, 1963] Instrument 72 of 1964 1. This Act may be cited as the Law Reform (Frustrated Contracts) Act. 2. In this Act, unless the context otherwise requiresShort title

Interpretation

"court" means, in relation to any matter, the court or arbitrator by or before whom the matter falls to be determined. 3. (1) Where a contract which is governed as to its essential validity by the law of Zambia has become impossible of performance or been otherwise frustrated, and the parties thereto have for that reason been discharged from the further performance of the contract, the following provisions of this section shall, subject to the provisions of section four, have effect in relation thereto. (2) All sums paid or payable to any party in pursuance of the contract before the time when the parties were so discharged (in this Act referred to as "the time of discharge") shall, in the case of sums so paid, be recoverable from him as money received by him for the use of the party by whom the sums were paid, and, in the case of sums so payable, cease to be so payable: Provided that, if the party to whom the sums were so paid or payable incurred expenses before the time of discharge in, or for the purpose of, the performance of the contract, the court may, if it considers it just to do so having regard to all the circumstances of the case, allow him to retain or, as the case may be, recover the whole or any part of the sums so paid or payable, not being an amount in excess of the expenses so incurred. (3) Where any party to the contract has, by reason of anything done by any other party thereto in, or for the purpose of, the performance of the contract, obtained a valuable benefit (other than a payment of money to which subsection (2) applies) before the time of discharge, there shall be recoverable from him by the said other party such sum (if any) not exceeding the value of the said benefit to the party obtaining it, as the court considers just, having regard to all the circumstances of the case, and, in particular(a) the amount of any expenses incurred before the time of discharge by the benefited party in, or for the purpose of, the performance of the contract, including any sums paid or payable by him to any other party in pursuance of the contract and retained or recoverable by that party under subsection (2); and (b) the effect, in relation to the said benefit of the circumstances Adjustments of rights and liabilities of parties to frustrated contracts

giving rise to the frustration of the contract. (4) In estimating, for the purposes of the foregoing provisions of this section, the amount of any expenses incurred by any party to the contract, the court may, without prejudice to the generality of the said provisions, include such sum as appears to be reasonable in respect of overhead expenses and in respect of any work or services performed personally by the said party. (5) In considering whether any sum ought to be recovered or retained under the foregoing provisions of this section by any party to the contract, the court shall not take into account any sums which have, by reason of the circumstances giving rise to the frustration of the contract, become payable to that party under any contract of insurance unless there was an obligation to insure imposed by an express term of the frustrated contract or by or under any enactment. (6) Where any person has assumed obligations under the contract in consideration of the conferring of a benefit by any other party to the contract upon any other person, whether a party to the contract or not, the court may, if in all the circumstances of the case it considers it just to do so, treat for the purposes of subsection (3) any benefit so conferred as a benefit obtained by the person who has assumed the obligations as aforesaid. 4. (1) This Act shall apply to contracts, whether made before or after the commencement of this Act, as respects which the time of discharge is on or after the said commencement but not to contracts as respects which the time of discharge is before the said commencement. (2) This Act shall apply to contracts to which the Republic is a party in like manner as to contracts between subjects. (3) Where any contract to which this Act applies contains any provision which, upon the true construction of the contract, is intended to have effect in the event of circumstances arising which operate, or would but for the said provision operate, to frustrate the contract, or is intended to have effect whether such circumstances arise or not, the court shall give effect to the said provision and shall only give effect to the foregoing section to such extent, if any, as appears to the court to be consistent Provisions as to application of this Act

with the said provision. (4) Where it appears to the court that a part of any contract to which this Act applies can properly be severed from the remainder of the contract being a part wholly performed before the time of discharge, or so performed except for the payment in respect of that part of the contract of sums which are or can be ascertained under the contract, the court shall treat that part of the contract as if it were a separate contract and had not been frustrated and shall treat the foregoing section as only applicable to the remainder of that contract. (5) This Act shall not apply(a) to any charterparty, except a time charterparty or a charterparty by way of demise, or to any contract (other than a charterparty) for the carriage of goods by sea; or (b) to any contract of insurance, save as is provided by subsection (5) of the foregoing section; or (c) to any contract to which section 7 of the Sale of Goods Act, 1893, of the United Kingdom (which avoids contracts for the sale of specific goods which perish before the risk has passed to the buyer) applies, or to any other contract for the sale, or for the sale and delivery, of specific goods where the contract is frustrated by reason of the fact that the goods have perished. (As amended by S.I. No. 72 of 1964)

CHAPTER 74 THE LAW REFORM (MISCELLANEOUS PROVISIONS) ACT

ARRANGEMENT OF SECTIONS

PART I PRELIMINARY

Section 1. Short title

PART II EFFECT OF DEATH ON CERTAIN CAUSES OF ACTION 2. 3. Survival of causes of action Amendment of Fatal Accidents Acts, 1846 to 1908

PART III AWARD OF INTEREST 4. Power of courts of record to award interest on debt and damages

PART IV CAPACITY, PROPERTY AND LIABILITIES OF MARRIED WOMEN: AND LIABILITIES OF HUSBANDS 5. 6. Capacity of married women Property of married women

7. Abolition of husband's liability for wife's torts and ante-nuptial contracts, debts and obligations 8. Savings

PART V PROCEEDINGS AGAINST BETWEEN TORTFEASORS 9. AND CONTRIBUTION

Proceedings against and contribution between joint and several tortfeasors

PART VI CONTRIBUTORY NEGLIGENCE 10. 11. Apportionment of liability in case of contributory negligence Interpretation

PART VII

PERSONAL INJURIES Section 12. 13. 14. 15. Common employment Assessment of damages Definition of personal injury Part VII to bind the State

CHAPTER 74

LAW REFORM (MISCELLANEOUS PROVISIONS) An Act to provide for the survival of actions after death; to empower courts to award interest on debts and damages; to make provision with regard to the property, capacity and liabilities of married women; to make provision with regard to proceedings against and contribution between joint and several tortfeasors; to provide for the apportionment of liability in case of contributory negligence; to abolish the defence of common employment; and to provide for matters incidental to or connected with the foregoing. [14th April, 1967]

26of 1967

PART I PRELIMINARY 1. This Act may be cited as the Law Reform (Miscellaneous Provisions) Act. Short title

PART II EFFECT OF DEATH ON CERTAIN CAUSES OF ACTION

2. (1) Subject to the provisions of this section, on the death of any person after the commencement of this Act, all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate: Provided that this subsection shall not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other or to claims for damages on the ground of adultery. (2) Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person(a) shall not include any exemplary damages;

Survival of causes of action

(b) in the case of a breach of promise to marry, shall be limited to such damage, if any, to the estate of that person as flows from the breach of promise to marry; (c) where the death of that person has been caused by the act or omission which gave rise to the cause of action, shall be calculated without reference to any loss or gain to his estate consequent on his death, except that a sum in respect of funeral expenses may be included. (3) No proceedings shall be maintainable in respect of a cause of action in tort which by virtue of this section has survived against the estate of a deceased person, unless either(a) proceedings against him in respect of that cause of action were pending at the date of his death; or (b) proceedings are taken in respect thereof not later than six months after his personal representative took out representation. (4) Where damage has been suffered by reason of any act or omission in respect of which a cause of action would have subsisted against any person if that person had not died before or at the same time as the damage was suffered, there shall be deemed, for the purposes of this Act, to have been subsisting against him before his death such cause of

action in respect of that act or omission as would have subsisted if he had died after the damage was suffered. (5) The rights conferred by this Act for the benefit of the estates of deceased persons shall be in addition to and not in derogation of any rights conferred on the dependants of deceased persons by the Fatal Accidents Acts, 1846 to 1908, of the United Kingdom, or any law for the time being in force relating to carriage by air, and so much of this Act as relates to causes of action against the estates of deceased persons shall apply in relation to causes of action under the said Acts as it applies in relation to other causes of action not expressly excepted from the operation of subsection (1). (6) In the event of the insolvency of an estate against which proceedings are maintainable by virtue of this section, any liability in respect of the cause of action in respect of which the proceedings are maintainable shall be deemed to be a debt provable in the administration of the estate, notwithstanding that it is a demand in the nature of unliquidated damages arising otherwise than by a contract, promise or breach of trust. 3. (1) For the purposes of the Acts, a person shall be deemed to be a parent or child of the deceased person notwithstanding that he was only related to him illegitimately or in consequence of adoption, and accordingly in deducing any relationship which under the provisions of the Acts is included within the meaning of the expressions "parent" and "child", any illegitimate person and any adopted person shall be treated as being, or as having been, the legitimate offspring of his mother and reputed father or, as the case may be, of his adopter. (2) In an action brought under the Acts, damages may be awarded in respect of the funeral expenses of the deceased person if such expenses have been incurred by the parties for whose benefit the action is brought. (3) This section shall not apply in relation to any action in respect of the death of any person before the commencement of this Act. (4) In this section, unless the context otherwise requires"the Acts" means the Fatal Accidents Acts, 1846 to 1908, of the United Kingdom; "adopted person" means a person who has been adopted, whether before Cap. 54 Amendment of Fatal Accidents Acts, 1846 to 1908

or after the commencement of this Act, in pursuance of an adoption order made under the Adoption Act.

PART III AWARD OF INTEREST 4. In any proceedings tried in any court of record for the recovery of any debt or damages, the court may, if it thinks fit, order that there shall be included in the sum for which judgment is given interest at such rate as it thinks fit on the whole or any part of the debt or damages for the whole or any part of the period between the date when the cause of action arose and the date of the judgment: Provided that nothing in the section(i) shall authorise the giving of interest upon interest; or Power of courts of record to award interest on debts and damages

(ii) shall apply in relation to any debt upon which interest is payable as of right whether by virtue of any agreement or otherwise; or (iii) shall affect the damages recoverable for the dishonour of a bill of exchange.

PART IV CAPACITY, PROPERTY AND LIABILITIES MARRIED WOMEN: AND LIABILITIES HUSBANDS OF OF

5. Subject to the provisions of this Part, and subject, as respects actions Capacity of in tort between husband and wife, to the provisions of section 12 of the married women Married Women's Property Act, 1882, of the United Kingdom, a married woman shall(a) and (b) be capable of acquiring, holding, and disposing of, any property; be capable of rendering herself, and being rendered, liable in

respect of any tort, contract, debt, or obligation; and (c) be capable of suing and being sued, either in tort or in contract or otherwise; and (d) be subject to the law relating to bankruptcy and to the enforcement of judgments and orders; in all respects as if she were a femme sole. 6. (1) Subject to the provisions of this Part, all property whichProperty of married women

(a) immediately before the commencement of this Act was the separate property of a married woman or held for her separate use in equity; or (b) belongs at the time of her marriage to a woman married after the commencement of this Act; or (c) after the commencement of this Act is acquired by or devolves upon a married woman; shall belong to her in all respects as if she were a femme sole and may be disposed of accordingly. (2) No restriction upon anticipation or alienation attached, or purported to be attached, to the enjoyment of any property by a woman which could not have been attached to the enjoyment of that property by a man shall be of any effect after the commencement of this Act. 7. Subject to the provisions of this Part, the husband of a married woman shall not, by reason only of his being her husband, be liable(a) in respect of any tort committed by her whether before or after the marriage, or in respect of any contract entered into, or debt or obligation incurred, by her before the marriage; or (b) to be sued, or made a party to any legal proceeding brought, in respect of any such tort, contract, debt, or obligation. Abolition of husband's liability for wife's torts and ante-nuptial contracts, debts and obligations

8. (1) Nothing in this Part shall enable any judgment or order against a Savings married woman in respect of a contract entered into, or debt or obligation incurred, before the commencement of this Act, to be enforced in bankruptcy or to be enforced otherwise than against her

property. (2) For the avoidance of doubt, it is hereby declared that nothing in this Part(a) renders the husband of a married woman liable in respect of any contract entered into, or debt or obligation incurred, by her after the marriage in respect of which he would not have been liable if this Act had not been passed; (b) exempts the husband of a married woman from liability in respect of any contract entered into, or debt or obligation (not being a debt or obligation arising out of the commission of a tort) incurred, by her after the marriage in respect of which he would have been liable if this Act had not been passed; (c) prevents a husband and wife from acquiring, holding, and disposing of, any property jointly or as tenants in common, or from rendering themselves, or being rendered, jointly liable in respect of any tort, contract, debt or obligation, and of suing and being sued, either in tort or in contract or otherwise, in like manner as if they were not married; (d) prevents the exercise of any joint power given to a husband and wife. (3) When a husband and wife are married according to customary law and not otherwise, the provisions of this Part shall not apply to the husband or to the wife.

PART V PROCEEDINGS AGAINST BETWEEN TORTFEASORS AND CONTRIBUTION

9. (1) Where damage is suffered by any person as a result of a tort (whether a crime or not)-

Proceedings against and contribution between joint

and several tortfeasors (a) judgment recovered against any tortfeasor liable in respect of that damage shall not be a bar to an action against any other person who would, if sued, have been liable as a joint tortfeasor in respect of the same damage; (b) if more than one action is brought in respect of that damage by or on behalf of the person by whom it was suffered, or for the benefit of the estate, or of the dependants of that person, against tortfeasors liable in respect of the damage (whether as joint tortfeasors or otherwise), the sums recoverable under the judgments given in those actions by way of damages shall not in the aggregate exceed the amount of the damages awarded by the judgment first given; and in any of those actions, other than that in which judgment is first given, the plaintiff shall not be entitled to costs unless the court is of opinion that there was reasonable ground for bringing the action; (c) any tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tortfeasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by him in respect of the liability in respect of which the contribution is sought. (2) In any proceedings for contribution under this section, the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage; and the court shall have power to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity. (3) For the purpose of this section(a) "dependants" means the persons for whose benefit actions may be brought under the Fatal Accidents Acts, 1846 to 1908, of the United Kingdom; and (b) the reference in this section to "the judgment first given" shall, in

the case where that judgment is reversed on appeal, be construed as a reference to the judgment first given which is not so reversed and, in a case where a judgment is varied on appeal, be construed as a reference to that judgment so varied. (4) Nothing in this section shall(a) apply with respect to any tort committed before the commencement of this Act; or (b) affect any criminal proceedings against any person in respect of any wrongful act; or (c) render enforceable any agreement for indemnity which would not have been enforceable if this section had not been passed.

PART VI CONTRIBUTORY NEGLIGENCE 10. (1) Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage: Provided that(i) this subsection shall not operate to defeat any defence arising under a contract; (ii) where any contract or enactment providing for the limitation of liability is applicable to the claim, the amount of damages recoverable by the claimant by virtue of this subsection shall not exceed the maximum limit so applicable. (2) Where damages are recoverable by any person by virtue of subsection (1), subject to such reduction as is therein mentioned, the Apportionment of liability in case of contributory negligence

court shall find and record the total damages which would have been recoverable if the claimant had not been at fault. (3) Section nine shall apply in any case where two or more persons are liable or would, if they had been sued, be liable by virtue of subsection (1), in respect of the damage suffered by any person. (4) Where any person dies as the result partly of his own fault and partly of the fault of any other person or persons, and accordingly if an action were brought for the benefit of the estate under Part II, the damages recoverable would be reduced under subsection (1), any damages recoverable in an action brought for the benefit of the dependants of that person under the Fatal Accidents Acts, 1846 to 1908, of the United Kingdom, shall be reduced to a proportionate extent. (5) Where, in any case to which subsection (1) applies, one of the persons at fault avoids liability to any other such person or his personal representative by pleading the Limitation Act, 1939, of the United Kingdom, or any other enactment limiting the time within which proceedings may be taken, he shall not be entitled to recover any damages or contributions from that other person or representative by virtue of the said subsection. (6) Any provisions of a law for the time being in force relating to carriage by air which empowers a court to exonerate wholly or partially a carrier who proves that the damage was caused by or contributed to by the negligence of the injured person, shall have effect subject to the provisions of this section. 11. In this Part, unless the context otherwise requires"court", in relation to any claim, includes an arbitrator by or before whom the claim falls to be determined; "damage" includes loss of life and personal injury; "dependant" means any person for whose benefit an action could be brought under the Fatal Accidents Acts, 1846 to 1908, of the United Kingdom; Interpretation

"fault" means negligence, breach of statutory duty or other act or omission which gives rise to a liability in tort or would, apart from this Act, give rise to the defence of contributory negligence.

PART VII PERSONAL INJURIES 12. (1) It shall not be a defence to an employer who is sued in respect of Common personal injuries caused by the negligence of a person employed by him, employment that that person was at the time the injuries were caused in common employment with the person injured. (2) Any provision contained in a contract of service or apprenticeship, or in an agreement collateral thereto (including a contract or agreement entered into before the commencement of this Act), shall be void in so far as it would have the effect of excluding or limiting any liability of the employer in respect of personal injuries caused to the person employed or apprenticed by the negligence of persons in common employment with him. 13. (1) In assessing damages in respect of a person's death in any action Assessment of under the Fatal Accidents Acts, 1846 to 1908, of the United Kingdom, damages or under any law for the time being in force relating to carriage by air, there shall not be taken into account any right to benefit resulting from that person's death. (2) This section shall not apply in relation to any action in respect of the death of any person before the commencement of this Act. (3) In this section, "benefit" means any insurance money (including a return of premiums), pension (including a return of contributions and any payment of a lump sum in respect of a person's employment), gratuity or workman's compensation, which has been or will or may be paid as a result of the death of the person concerned. 14. In this Part, the expression "personal injury" includes any disease and any impairment of a person's physical or mental condition, and the Definition of personal injury

expression "injured" shall be construed accordingly. 15. This Part shall bind the State. Part VII to bind the State

CHAPTER 75 THE AUTHENTICATION OF DOCUMENTS ACT

ARRANGEMENT OF SECTIONS

Section 1. 2. 3. 4. 5. Short title Interpretation How documents executed outside Zambia are to be authenticated Authentication by magistrate in Her Britannic Majesty's dominions Saving as to affidavit sworn before a Commissioner of the High Court

CHAPTER 75

AUTHENTICATION OF DOCUMENTS An Act to provide for the authentication of documents; and to provide for matters incidental to or connected with the foregoing. [21st February, 1914]

1 of 1914 42 of 1957 57 of 1964 Government Notices 222 of 1964 497 of 1964 Statutory Instrument 72 of 1964

1.

This Act may be cited as the Authentication of Documents Act.

Short title

2. In this Act, unless the context otherwise requires"authentication", when applied to a document, means the verification of any signature thereon; "document" means any deed, contract, power of attorney, affidavit, or other writing, but does not include an affidavit sworn before a Commissioner of the High Court. (As amended by S.I. No. 72 of 1964) 3. Any document executed outside Zambia shall be deemed to be sufficiently authenticated for the purpose of use in Zambia if(a) in the case of a document executed in Great Britain or Ireland it be duly authenticated by a notary public under his signature and seal of office; (b) in the case of a document executed in any part of Her Britannic Majesty's dominions outside the United Kingdom it be duly authenticated by the signature and seal of office of the mayor of any town or of a notary public or of the permanent head of any Government Department in any such part of Her Britannic Majesty's dominions; (c) in the case of document executed in any of Her Britannic Majesty's territories or protectorates in Africa it be duly authenticated by the signature and seal of office of any notary, magistrate, permanent head of a Government Department, Resident Commissioner or Assistant Commissioner in or of any such territory or protectorate; (d) in the case of a document executed in any place outside Her Britannic Majesty's dominions (hereinafter referred to as a "foreign place") it be duly authenticated by the signature and seal of office(i) of a British Consul-General, Consul or Vice-Consul in such foreign place; or (ii) of any Secretary of State, Under-Secretary of State, Governor, Colonial Secretary, or of any other person in such foreign place who shall be shown by the certificate of a Consul or Vice-Consul of such foreign place in Zambia to be duly authorised under the law of such foreign place to authenticate such document. (As amended by No. 42 of 1957, G.N. No. 222 of 1964 and S.I. No. 72 of 1964)

Interpretation

How documents executed outside Zambia are to be authenticated

4. Notwithstanding anything in the last preceding section contained, it shall be sufficient authentication of a document executed in any part of Her Britannic Majesty's dominions for use in Zambia which affects or relates to property not exceeding in value or amount four hundred kwacha if there be appended to or endorsed on such document a statement signed by a magistrate of the part of Her Britannic Majesty's dominions in which such document is executed(a) that the person executing such document is a person known to him; or (b) that two other persons known to him have severally testified before him that the person executing such document is a person known to each of them. (As amended by S.I. No. 72 of 1964) 5. An affidavit sworn before and attested by a Commissioner of the High Court beyond the confines of Zambia shall require no further authentication and may be used in all cases and matters in which affidavits are admissible as freely as if it had been duly made and sworn to within Zambia. (As amended by S.I. No. 72 of 1964)

Authentication by magistrate in Her Britannic Majesty's dominions

Saving as to affidavit sworn before a Commissioner of the High Court

CHAPTER 76 THE FOREIGN JUDGMENTS (RECIPROCAL ENFORCEMENT) ACT

ARRANGEMENT OF SECTIONS

PART I PRELIMINARY Section 1. 2. Short title Interpretation

PART II REGISTRATION OF FOREIGN JUDGMENTS

3. 4. 5. 6.

Power to extend Part II to foreign countries giving reciprocal treatment Application for, and effect of, registration of foreign judgment Rules of court Cases in which registered judgments must, or may, be set aside

7. Powers of registering court on application to set aside registration 8. Foreign judgments which can be registered not to be enforceable otherwise 9. Power to apply Part II to British dominions, protectorates and mandated territories 10. Interpretation of Part II

PART III MISCELLANEOUS 11. 12. 13. General effect of certain foreign judgments Power to make foreign judgments unenforceable in the Republic if no reciprocity Issue of certificates of judgments obtained in the Republic

CHAPTER 76

FOREIGN JUDGMENTS (RECIPROCAL ENFORCEMENT)

5of 1937 12of 1959 An Act to make provision for the enforcement in the Republic of 41of 1960 judgments given in foreign countries which accord reciprocal treatment Government to judgments given in the Republic, for facilitating the enforcement in Notices foreign countries of judgments given in the Republic and for other 303of 1964 purposes in connection with the matters aforesaid. 497of 1964 Statutory [16th July, 1937] Instrument 152of 1965

PART I

PRELIMINARY 1. This Act may be cited as the Foreign Judgments (Reciprocal Enforcement) Act. 2. (1) In this Act, unless the context otherwise requires"appeal" includes any proceedings by way of discharging or setting aside a judgment or an application for a new trial or a stay of execution; "country of the original court" means the country in which the original court is situated; "judgment" means a judgment or order given or made by a court in any civil proceedings, or a judgment or order given or made by a court in any criminal proceedings for the payment of a sum of money in respect of compensation or damages to an injured party; "judgment creditor" means the person in whose favour the judgment was given, and includes any person in whom the rights under the judgment have become vested by succession or assignment or otherwise; "judgment debtor" means the person against whom the judgment was given, and includes any person against whom the judgment is enforceable under the law of the original court; "original court", in relation to any judgment, means the court by which the judgment was given; "prescribed" means prescribed by rules of court; "registering court", in relation to any judgment, means the court to which an application to register the judgment is made; "registration" means registration under Part II, and "register" and "registered" shall be construed accordingly. (2) For the purposes of this Act, the expression "action in personam" shall not be deemed to include any matrimonial cause or any proceedings in connection with any of the following matters, that is to say, matrimonial matters, administration of the estates of deceased persons, bankruptcy, winding up of companies, lunacy or guardianship of infants. (As amended by G.N. No. 303 of 1964 and S.I. No. 152 of 1965) Short title

Interpretation

PART II REGISTRATION OF FOREIGN JUDGMENTS 3. (1) The President, if he is satisfied that, in the event of the benefits conferred by this Part being extended to judgments given in the superior courts of any foreign country, substantial reciprocity of treatment will be assured as respects the enforcement in that foreign country of judgments given in the High Court, may by statutory order directPower to extend Part II to foreign countries giving reciprocal treatment

(a)

that this Part shall extend to that foreign country; and

(b) that such courts of that foreign country as are specified in the order shall be deemed superior courts of that country for the purposes of this Part. (2) Any judgment of a superior court of a foreign country to which this Part extends, other than a judgment of such a court given on appeal from a court which is not a superior court, shall be a judgment to which this Part applies, if(a) it is final and conclusive as between the parties thereto; and

(b) there is payable thereunder a sum of money, not being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty; and (c) it is given after the commencement of the order directing that this Part shall extend to that foreign country. (3) For the purposes of this section, a judgment shall be deemed to be final and conclusive notwithstanding that an appeal may be pending against it, or that it may still be subject to appeal, in the courts of the country of the original court. (4) The President may by a subsequent statutory order vary or revoke any order previously made under this section.

(As amended by G.N. No. 303 of 1964 and S.I. No. 152 of 1965) 4. (1) A person, being a judgment creditor under a judgment to which this Part applies, may apply to the High Court at any time within six years after the date of the judgment, or, where there have been proceedings by way of appeal against the judgment, after the date of the last judgment given in those proceedings, to have the judgment registered in the High Court and on any such application the court shall, subject to proof of the prescribed matters and to the other provisions of this Act, order the judgment to be registered: Provided that a judgment shall not be registered if at the date of the application(i) it has been wholly satisfied; or (ii) it could not be enforced by execution in the country of the original court. (2) Subject to the provisions of this Act with respect to the setting aside of registration(a) a registered judgment shall, for the purposes of execution, be of the same force and effect; and (b) (c) and proceedings may be taken on a registered judgment; and the sum for which a judgment is registered shall carry interest; Application for, and effect of, registration of foreign judgment

(d) the registering court shall have the same control over the execution of a registered judgment; as if the judgment had been a judgment originally given in the registering court and entered on the date of registration: Provided that execution shall not issue on the judgment so long as, under this Part and the rules of court made thereunder, it is competent for any party to make an application to have the registration of the judgment set aside, or, where such an application is made, until after the application has been finally determined.

(3) Where the sum payable under a judgment which is to be registered is expressed in a currency other than the currency of the Republic, the judgment shall be registered as if it were a judgment for such sum in the currency of the Republic as, on the basis of the rate of exchange prevailing at the date of the judgment of the original court, is equivalent to the sum so payable. (4) If, at the date of the application for registration, the judgment of the original court has been partly satisfied, the judgment shall not be registered in respect of the whole sum payable under the judgment of the original court, but only in respect of the balance remaining payable at that date. (5) If, on an application for the registration of a judgment, it appears to the registering court that the judgment is in respect of different matters and that some, but not all, of the provisions of the judgment are such that if those provisions had been contained in separate judgments those judgments could properly have been registered, the judgment may be registered in respect of the provisions aforesaid but not in respect of any other provisions contained therein. (6) In addition to the sum of money payable under the judgment of the original court, including any interest which by the law of the country of the original court becomes due under the judgment up to the time of registration, the judgment shall be registered for the reasonable costs of and incidental to registration, including the costs of obtaining a certified copy of the judgment from the original court. (As amended by S.I. No. 152 of 1965) 5. (1) The power to make rules of court under the High Court Act shall, Rules of court. subject to the provisions of this section, include power to make rules for Cap. 27 the following purposes: (a) for making provisions with respect to the giving of security for costs by persons applying for the registration of judgments; (b) for prescribing the matters to be proved on an application for the registration of a judgment and for regulating the mode of proving those matters;

(c) for providing for the service on the judgment debtor of notice of the registration of a judgment; (d) for making provision with respect to the fixing of the period within which an application may be made to have the registration of the judgment set aside and with respect to the extension of the period so fixed; (e) for prescribing the method by which any question arising under this Act whether a foreign judgment can be enforced by execution in the country of the original court, or what interest is payable under a foreign judgment under the law of the original court, is to be determined; (f) for prescribing any matter which under this Part is to be prescribed. (2) Rules made for the purposes of this Part shall be expressed to have, and shall have, effect subject to any such provisions contained in orders made under section three as are declared by the said orders to be necessary for giving effect to agreements made between the Government and foreign countries, in relation to matters with respect to which there is power to make rules of court for the purposes of this Part. (As amended by No. 41 of 1960, G.N. No. 303 of 1964 and S.I. No. 152 of 1965) 6. (1) On an application in that behalf duly made by any party against whom a registered judgment may be enforced, the registration of the judgmentCases in which registered judgments must, or may, be set aside

(a)

shall be set aside if the registering court is satisfied-

(i) that the judgment is not a judgment to which this Part applies or was registered in contravention of the foregoing provisions of this Act; or (ii) that the courts of the country of the original court had no jurisdiction in the circumstances of the case; or (iii) that the judgment debtor, being the defendant in the proceedings in the original court, did not (notwithstanding that process may have been duly served on him in accordance with the law of the country of the

original court) receive notice of those proceedings in sufficient time to enable him to defend the proceedings and did not appear; or (iv) that the judgment was obtained by fraud; or (v) that the enforcement of the judgment would be contrary to public policy in the Republic; or (vi) that the rights under the judgment are not vested in the person by whom the application for registration was made; (b) may be set aside if the registering court is satisfied that the matter in dispute in the proceedings in the original court had previously to the date of the judgment in the original court been the subject of a final and conclusive judgment by a court having jurisdiction in the matter. (2) For the purposes of this section, the courts of the country of the original court shall, subject to the provisions of subsection (3), be deemed to have had jurisdiction(a) in the case of a judgment given in an action in personam-

(i) if the judgment debtor, being a defendant in the original court, submitted to the jurisdiction of that court by voluntarily appearing in the proceedings otherwise than for the purpose of protecting or obtaining the release of property seized, or threatened with seizure, in the proceedings or of contesting the jurisdiction of that court; or (ii) if the judgment debtor was plaintiff in, or counter-claimed in, the proceedings in the original court; or (iii) if the judgment debtor, being a defendant in the original court, had before the commencement of the proceedings agreed, in respect of the subject-matter of the proceedings, to submit to the jurisdiction of that court or of the courts of the country of that court; or (iv) if the judgment debtor, being a defendant in the original court, was at the time when the proceedings were instituted resident in, or being a body corporate had its principal place of business in, the country of that court; or (v) if the judgment debtor, being a defendant in the original court, had an office or place of business in the country of that court and the proceedings in that court were in respect of a transaction effected through or at that office or place;

(b) in the case of a judgment given in an action of which the subject-matter was immovable property or in an action in rem of which the subject-matter was movable property, if the property in question was at the time of the proceedings in the original court situate in the country of that court; (c) in the case of a judgment given in an action other than any such action as is mentioned in paragraph (a) or (b), if the jurisdiction of the original court is recognised by the law of the registering court. (3) Notwithstanding anything in subsection (2), the courts of the country of the original court shall not be deemed to have had jurisdiction(a) if the subject-matter of the proceedings was immovable property outside the country of the original court; or (b) except in the cases mentioned in sub-paragraphs (i), (ii) and (iii) of paragraph (a) and in paragraph (c) of subsection (2), if the bringing of the proceedings in the original court was contrary to an agreement under which the dispute in question was to be settled otherwise than by proceedings in the courts of the country of that court; or (c) if the judgment debtor, being a defendant in the original proceedings, was a person who, under the rules of public international law, was entitled to immunity from the jurisdiction of the courts of the country of the original court and did not submit to the jurisdiction of that court. 7. (1) If, on an application to set aside the registration of a judgment, the applicant satisfies the registering court either that an appeal is pending, or that he is entitled and intends to appeal, against the judgment, the court, if it thinks fit, may, on such terms as it may think just, either set aside the registration or adjourn the application to set aside the registration until after the expiration of such period as appears to the court to be reasonably sufficient to enable the applicant to take the necessary steps to have the appeal disposed of by a competent tribunal. (2) Where the registration of a judgment is set aside under subsection (1), or solely for the reason that the judgment was not at the date of the application for registration enforceable by execution in the country of Powers of registering court on application to set aside registration

the original court, the setting aside of the registration shall not prejudice a further application to register the judgment when the appeal has been disposed of or if and when the judgment becomes enforceable by execution in that country, as the case may be. (3) Where the registration of a judgment is set aside solely for the reason that the judgment, notwithstanding that it had at the date of the application for registration been partly satisfied, was registered for the whole sum payable thereunder, the registering court shall, on the application of the judgment creditor, order judgment to be registered for the balance remaining payable at that date. 8. No proceedings for the recovery of a sum payable under a foreign judgment, being a judgment to which this Part applies, other than proceedings by way of registration of the judgment, shall be entertained by any court in the Republic. Foreign judgments which can be registered not to be enforceable otherwise Power to apply Part II to British dominions, protectorates and mandated territories

9. (1) The President may by statutory order direct that this Part shall apply to Her Britannic Majesty's dominions and to judgments obtained in the courts of the said dominions as it applies to foreign countries and to judgments obtained in the courts of foreign countries, and, in the event of the President so directing, this Act shall have effect accordingly and the British and Colonial Judgments Act, Chapter 16 of the 1959 Edition of the Laws, shall cease to have effect except in relation to those parts of the said dominions to which it extends at the commencement of the order. (2) If, at any time after the President has directed as aforesaid, an order is made under section three extending this Part to any part of Her Britannic Majesty's dominions to which the British and Colonial Judgments Act, Chapter 16 of the 1959 Edition of the Laws, extends as aforesaid, the said Act shall cease to have effect in relation to that part of Her Britannic Majesty's dominions, except as regards judgments obtained before the commencement of the order. (3) References in this section to Her Britannic Majesty's dominions shall be construed as including references to any British protectorate or protected state and any territory in respect of which a mandate on behalf of the League of Nations has been accepted by Her Britannic Majesty.

(As amended by G.N. No. 303 of 1964 and S.I. No. 152 of 1965) 10. Where an order is made extending this Part to any part of Her Britannic Majesty's dominions to which the British and Colonial Judgments Act, Chapter 16 of the 1959 Edition of the Laws, has been extended, this Part shall, in relation to that part of Her Britannic Majesty's dominions, have effect as if(a) the expression "judgment" included an award in proceedings on an arbitration if the award has, in pursuance of the law in force in the place where it was made, become enforceable in the same manner as a judgment given by a court in that place; (b) the fact that a judgment was given before the commencement of the order did not prevent it from being a judgment to which this Part applies, but the time limited for the registration were, in the case of a judgment so given, twelve months from the date of the judgment or such longer period as may be allowed by the High Court; (c) any judgment registered in the High Court under the British and Colonial Judgments Act, Chapter 16 of the 1959 Edition of the Laws, before the commencement of the order, had been registered in the High Court under this Part, and anything done in relation thereto under the British and Colonial Judgments Act, Chapter 16 of the 1959 Edition of the Laws, or any rules of court or other provisions applicable to the said Act, had been done under this Part or the corresponding rules of court or other provisions applicable to this Part. (No. 12 of 1959 as amended by G.N. No. 303 of 1964 and S.I. No. 152 of 1965) Interpretation of Part II

PART III MISCELLANEOUS 11. (1) Subject to the provisions of this section, a judgment to which Part II applies or would have applied if a sum of money had been payable thereunder, whether it can be registered or not, and whether, if it can be registered, it is registered or not, shall be recognised in any court in the Republic as conclusive between the parties thereto in all proceedings founded on the same cause of action, and may be relied on by way of defence or counter-claim in any such proceedings. General effect of certain foreign judgments

(2) This section shall not apply in the case of any judgment(a) where the judgment has been registered and the registra-tion thereof has been set aside on some ground other than(i) (ii) that a sum of money was not payable under the judgment; or that the judgment had been wholly or partly satisfied; or

(iii) that at the date of the application the judgment could not be enforced by execution in the country of the original court; or (b) where the judgment has not been registered, it is shown (whether it could have been registered or not) that if it had been registered the registration thereof would have been set aside on an application for that purpose on some ground other than one of the grounds specified in paragraph (a). (3) Nothing in this section shall be taken to prevent any court in the Republic recognising any judgment as conclusive of any matter of law or fact decided therein if that judgment would have been so recognised before the commencement of this Act. 12. (1) If it appears to the President that the treatment in respect of recognition and enforcement accorded by the courts of any foreign country to judgments given in the High Court is substantially less favourable than that accorded by the courts of the Republic to judgments of the superior courts of that country, the President may by statutory order apply this section to that country. (2) Except in so far as the President may by order under this section otherwise direct, no proceedings shall be entertained in any court in the Republic for the recovery of any sum alleged to be payable under a judgment given in a court of a country to which this section applies. (3) The President may by a subsequent statutory order vary or revoke any order previously made under this section. (As amended by G.N. No. 303 of 1964) 13. Where a judgment under which a sum of money is payable, not Issue of Power to make foreign judgments unenforceable in the Republic if no reciprocity

being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty, has been entered in the High Court against any person, and the judgment creditor is desirous of enforcing the judgment in a foreign country to which Part II applies, the court shall, on an application made by the judgment creditor and on payment of such fee as may be fixed for the purpose of this section under the High Court Act, issue to the judgment creditor a certified copy of the judgment, together with a certificate containing such particulars with respect to the action, including the causes of action, and the rate of interest, if any, payable on the sum payable under the judgment, as may be prescribed: Provided that, where execution of a judgment is stayed for any period pending an appeal or for any other reason, an application shall not be made under this section with respect to the judgment until the expiration of that period. (As amended by S.I. No. 152 of 1965)
SUBSIDIARY LEGISLATION

certificates of judgments obtained in the Republic Cap. 27

FOREIGN JUDGMENTS (RECIPROCAL ENFORCEMENT) SECTION 3-THE JUDGMENTS (RECIPROCAL ENFORCEMENT) (GILBERT AND ELLICE ISLANDS COLONY) ORDER

CAP. 76
Government Notice 29 of 1958

1. This Order may be cited as the Judgments (Reciprocal Enforcement) Title (Gilbert and Ellice Islands Colony) Order. 2. It is hereby directed that Part II of the Act shall extend to the Gilbert Extension of and Ellice Islands Colony. Part II of Act 3. It is hereby further directed that the following court shall be deemed Superior court to be a superior court of the said Colony for the purposes of Part II of the for purposes of Act: Part II of Act Her Britannic Majesty's High Commissioner's Court for the Western Pacific.

SECTION 3-THE JUDGMENTS (RECIPROCAL ENFORCEMENT) (BRITISH SOLOMON ISLANDS PROTECTORATE) ORDER

Government Notice 30of 1958

1. This Order may be cited as the Judgments (Reciprocal Enforcement) Title (British Solomon Islands Protectorate) Order. 2. It is hereby directed that Part II of the Act shall extend to the British Extension of Solomon Islands Protectorate. Part II of Act 3. It is hereby further directed that the following court shall be deemed Superior court to be a superior court of the said Protectorate for the purposes of Part II for purposes of of the Act: Part II of Act Her Britannic Majesty's High Commissioner's Court for the Western Pacific. THE FOREIGN JUDGMENTS (RECIPROCAL ENFORCEMENT) RULES ARRANGEMENT OF RULES Rule 1. 2. 3. 4. 5. 6. 7. 8. 9. Title Interpretation Application for registration Evidence in support of application Security for costs Title of affidavit and summons Order on application for registration Register of judgments Notice of registration

10. 11. 12. 13. 14. 15. 16.

Endorsement of service Application to set aside registration Issue of execution Form of writ of execution Determination of certain questions Certified copy of High Court judgment Rules to have effect subject to Orders Government Notices 68of 1958 303 of 1964 Statutory Instrument 52 of 1965 Title

SECTION 5-THE FOREIGN JUDGMENTS (RECIPROCAL ENFORCEMENT) RULES Rules by the High Court

1. These Rules may be cited as the Foreign Judgments (Reciprocal Enforcement) Rules. 2. In these Rules, unless the context otherwise requires-

Interpretation

"Order" means a statutory order made under section three of the Act. (As amended by No. 303 of 1964) 3. An application under section three of the Act to have a foreign Application for judgment to which Part II of the Act applies registered in the High Court registration may be made ex parte to the Court or a Judge. 4. (1) An application for registration shall be supported by an affidavit Evidence in of the factssupport of application (a) exhibiting a certified copy of the judgment issued by the original court and authenticated by its seal and a translation of the judgment certified by a notary public or authenticated by affidavit; (b) stating to the best of the information and belief of the deponent-

(i)

that the applicant is entitled to enforce the judgment;

(ii) as the case may require, either that at the date of the application the judgment has not been satisfied, or if the judgment has been satisfied in part, what the amount is in respect of which it remains unsatisfied; (iii) that at the date of the application the judgment can be enforced by execution in the country of the original court; (iv) that if the judgment were registered, the registration would not be, or be liable to be, set aside under section six of the Act; (c) specifying the amount of the interest, if any, which under the law of the country of the original court has become due under the judgment up to the time of registration; and shall be accompanied by such other evidence with respect to the matters referred to in sub-paragraph (iii) of paragraph (b) or paragraph (c) as may be required having regard to the provisions of the Order extending the Act to the country of the original court. (2) Where the sum payable under the judgment is expressed in a currency other than the currency of the Republic, the affidavit shall also state the amount which that sum represents in the currency of the Republic calculated at the rate of exchange prevailing at the date of the judgment. (3) The affidavit shall also state the full name, title, trade or business and the usual or last known place of abode or of business of the judgment creditor and the judgment debtor respectively, so far as known to the deponent. (4) Where a judgment is in respect of different matters, and some, but not all of the provisions of the judgment are such that if those provisions had been contained in separate judgments, those judgments could properly have been registered, the affidavit shall state the provisions in respect of which it is sought to register the judgment. (As amended by No. 303 of 1964 and No. 152 of 1965) 5. Save as otherwise provided by any relevant Order, the Court or a Security for Judge may, in respect to an application for registration, order the costs judgment creditor to find security for the costs of the application and of any proceedings which may thereafter be brought to set aside the

registration. (As amended by No. 303 of 1964) 6. The affidavit, if any, shall be intituled: Title of affidavit and summons

In the matter of the Foreign Judgments (Reciprocal Enforcement) Act, and in the matter of a judgment of the (describing the court) obtained in (describing the cause or matter) and dated the day of ................................................................. 19........ 7. (1) An order giving leave to register a judgment shall be drawn up by, or on behalf of, the judgment creditor. Order on application for registration

(2) No such order shall require to be served on the judgment debtor. (3) Every such order shall state the period within which an application may be made to set aside the registration and shall contain a notification that execution on the judgment will not issue until the expiration of that period. (4) The Court or a Judge may, on an application made at any time while it remains competent for any party to apply to have the registration set aside, grant an extension of the period (either as originally fixed or as subsequently extended) during which an application to have the judgment set aside may be made. 8. There shall be kept in the Principal Registry of the High Court at Lusaka by, or under the direction of, the Registrar a register of the judgments ordered to be registered under the Act. Register of judgments

9. (1) Notice in writing of the registration of a judgment must be served Notice of on the judgment debtorregistration

(a) if within the jurisdiction, by personal service as in the case of a writ of summons, unless some other mode of service is ordered by the Court or a Judge; (b) if out of the jurisdiction, in accordance with the rules applicable to the service of a writ of summons out of jurisdiction, save that special leave to serve out of the jurisdiction shall not be required. (2) The notice of registration shall state(a) full particulars of the judgment registered and the order for registration; and (b) the name and address of the judgment creditor or his solicitor or agent on whom, and at which, any summons issued by the judgment debtor may be served; and (c) the right of the judgment debtor to apply on the grounds provided in the Act to have the registration set aside; and (d) in accordance with the terms of the order giving leave to register, within what time from the date of service of the notice an application to set aside may be made. 10. (1) Within three days from the day of service or within such Endorsement of extended period as may, in special circumstances, be allowed by order service of a Judge, the notice or a copy or duplicate thereof shall be endorsed by the person serving the same with the day of the month and of the week on which service was effected, and, if the notice is not so endorsed, the judgment creditor shall not be at liberty to issue execution on the judgment without the leave of the Court or a Judge. (2) Every affidavit of service of any such notice shall state on what day such endorsement was made. 11. (1) An application to set aside the registration of a judgment shall be made by summons to the Court or a Judge supported by affidavit. Application to set aside registration

(2) A summons for the purpose of this rule shall be an ordinary summons entitled in the same manner as the affidavit referred to in rule 6. (3) On any such application, the Court or a Judge may direct that an issue between the judgment creditor and the judgment debtor shall be stated and tried and may give such directions in relation to the trial of such issue as may be necessary. 12. (1) Execution shall not issue on a registered judgment until after the Issue of expiration of the period which, in accordance with the provisions of rule execution 7 (3), is specified in the order giving leave to register as the period within which an application may be made to set aside the registration, or, if an order is made extending the period so specified, until after the expiration of the extended period. (2) If an application is made to set aside the registration of a judgment, execution shall not issue until such application has been disposed of. (3) The party desirous of issuing an execution upon a registered judgment shall produce to the proper officer an affidavit of the service of the notice of registration and of any order made by the court in relation to the judgment registered. 13. In the case of a registered judgment the form of a writ of execution Form of writ of shall be varied as follows: execution For the words "which said sum of money and interest were lately before us in the High Court for Zambia", etc., there shall be substituted the words "which said sum of money and interest were lately in (describing the court in which judgment was obtained)", etc., "and which judgment has been duly registered in the High Court for Zambia pursuant to Part II of the Foreign Judgments (Reciprocal Enforcement) Act". (As amended by No. 152 of 1965) 14. If, whether under the Act or under these Rules, any question arises Determination

whether a foreign judgment can be enforced by execution in the country of certain of the original court, or what interest is payable under the foreign questions judgment under the law of that country, that question shall be determined in accordance with such provisions, if any, in that behalf, as are contained in the Order extending the Act to that country. (As amended by No. 303 of 1964) 15. (1) An application under section twelve of the Act for a certified Certified copy copy of a judgment obtained in the High Court shall be made ex parte to of High Court the Registrar on an affidavit made by the judgment creditor or his judgment solicitor. (2) An affidavit for the purposes of this rule shall(a) give particulars of the proceedings in which the judgment was obtained; and (b) have annexed to it a copy of the writ of summons or the originating summons by which the proceedings were instituted, the evidence of service thereof upon, or appearance by, the defendant, copies of the pleadings, if any, in the proceedings, and a statement of the grounds on which the judgment was based; and (c) state whether the defendant did or did not object to the jurisdiction, and if so, on what grounds; and (d) show that the judgment is not subject to any stay of execution and that no notice of appeal against it has been entered, and whether the time for appealing has expired; and (e) state the rate at which the judgment carries interest.

(3) Where an application for a certified copy of judgment is duly made under this rule, there shall be issued an office copy of the judgment sealed with the seal of the High Court and certified by the Registrar as follows: I certify that the above copy judgment is a true copy of a judgment obtained in the High Court for Zambia and this copy is issued in accordance with section twelve of the Foreign Judgments (Reciprocal

Enforcement) Act. Signed ....................................................... Registrar of the High Court. together with the following further certificates also under the seal of the High Court and certified by the Registrar: (a) a certificate giving particulars of the proceedings in which the judgment was obtained and having annexed to it copies of the writ of summons, or originating summons, by which the proceedings were instituted, showing the manner in which the writ or summons was served on the defendant, or that the defendant appeared thereto, and the objections made to the jurisdiction, if any, the pleadings, if any, in the proceedings, a statement of the grounds on which the judgment was based and such other particulars as it may be necessary to give to the foreign tribunal in which it is sought to obtain execution of the judgment; (b) a certificate stating the rate at which the judgment carries interest. (As amended by No. 152 of 1965) 16. These Rules shall, in relation to any judgment, have effect subject Rules to have to any such provisions contained in the Order extending the Act to the effect subject to country of the original court as are declared by the Order to be necessary Orders for giving effect to the agreement made in relation to matters for which provision is made by these Rules. (As amended by No. 303 of 1964) SECTION 9-THE FOREIGN JUDGMENTS (RECIPROCAL ENFORCEMENT) ORDER
Government Notice 28 of 1958 Statutory Instrument 152 of 1965

1. This Order may be cited as the Foreign Judgments (Reciprocal Enforcement) Order.

Title Application of Part II of Act to Her Britannic Majesty's dominions

2. It is hereby directed that Part II of the Act shall apply to Her Britannic Majesty's dominions and to judgments obtained in the courts of the said dominions as it applies to foreign countries and to judgments in the courts of foreign countries. (As amended by No. 152 of 1965)

CHAPTER 77 THE DEBTORS ACT

ARRANGEMENT OF SECTIONS

Section 1. 2. 3. 4. 5. 6. 7. 8. 9. Short title Interpretation Restrictions on imprisonment for debt-with exceptions Power of committal for judgment debt Proof of means Jurisdiction of High Court may be exercised in chambers Payment by instalments Imprisonment not to operate as satisfaction Discharge on payment

10. Power under certain circumstances to arrest defendant about to quit Zambia 11. Power under certain circumstances to arrest judgment debtor about to leave Zambia 12. This Act to apply to civil proceedings by the State

CHAPTER 77

DEBTORS An Act in restriction of imprisonment for debt.

12 of 1938 8 of 1962 27 of 1965 Government

Notice [21st June, 1938] 497 of 1964 1. This Act may be cited as the Debtors Act. Short title Interpretation

2. In this Act, unless the context otherwise requires"prescribed" means-

(a) as respects the High Court, prescribed by rules to be made under Cap. 27 the High Court Act; (b) as respects the subordinate courts, prescribed by rules to be made under the Subordinate Courts Act. 3. (1) With the exceptions hereinafter mentioned, no person shall be arrested or imprisoned for making default in payment of a sum of money. Cap. 28

Restrictions on imprisonment for debt-with exceptions

(2) There shall be excepted from the operation of subsection (1)(a) default in payment of a penalty or sum in the nature of a penalty, other than a penalty in respect of any contract; (b) default in payment of any sum recoverable under the provisions Cap. 88 of the Criminal Procedure Code; (c) default by a trustee or person acting in a fiduciary capacity and ordered to pay by any court of competent jurisdiction any sum in his possession or control; (d) default by any person practising in Zambia as a barrister or solicitor in payment of costs when ordered to pay costs for professional misconduct, or in payment of a sum of money when ordered to pay the same in his character as an officer of the High Court; (e) default in payment for the benefit of creditors of any portion of a salary or other income in respect of the payment of which any court

having jurisdiction in bankruptcy is authorised to make an order; (f) default in payment of sums in respect of the payment of which orders are in this Act authorised to be made; (g) default in payment of any sum payable in respect of estate duty:

Provided that(i) in any case coming within the exceptions (c) and (d), or either of them, any court making the order for payment or having jurisdiction in the action or proceeding in which the order for payment is made, may inquire into the case and, subject to provisos (ii) and (iii), may grant or refuse, either absolutely or upon terms, any application for a writ of attachment, or other process or order of arrest or imprisonment and any application to stay the operation of any such writ, process or order, or for discharge from arrest or imprisonment thereunder; (ii) no person shall be imprisoned in any case excepted from the operation of this section for a longer period than six months; (iii) nothing in this section shall alter the effect of any judgment or order of any court for payment of money, except as regards the arrest and imprisonment of the person making default in paying such money. (As amended by No. 27 of 1965) 4. Subject to the provisions hereinafter mentioned and to prescribed rules, any court may commit to prison for a term not exceeding six weeks, or until payment of the sum due, any person who makes default in payment of any debt or instalment of any debt due from him in pursuance of any order or judgment of that or any other competent court: Provided that(i) the jurisdiction by this section given shall, in the case of any court other than the High Court, be exercised only by a subordinate court of the first or second class, and by an order made in open court and showing on its face the ground on which it is issued; (ii) such jurisdiction shall only be exercised where it is proved to the satisfaction of the court that the person making default either has or has had, since the date of the order or judgment, the means to pay the sum in Power of committal for judgment debt

respect of which he has made default, and has refused or neglected, or refuses or neglects, to pay the same. 5. Proof of the means of the person making default may be given in Proof of means such manner as the court thinks just; and for the purposes of such proof the debtor and any witnesses may be summoned and examined on oath, according to the prescribed rules. 6. The jurisdiction of the High Court under section four may be exercised by a Judge sitting in chambers or otherwise in the prescribed manner. Jurisdiction of High Court may be exercised in chambers Payment by instalments

7. For the purpose of section four, the court may direct any debt due from any person in pursuance of any order or judgment of that or any other competent court to be paid by instalments, and from time to time rescind or vary such order.

8. No imprisonment under section four shall operate as a satisfaction or Imprisonment extinguishment of any debt or demand or cause of action, or deprive any not to operate as person of any right to take out execution against the lands, goods or satisfaction chattels of the person imprisoned, in the same manner as if such imprisonment had not taken place. 9. Any person imprisoned under section four shall be discharged out of Discharge on custody upon a certificate signed in the prescribed manner to the effect payment that he has satisfied the debt or instalment of a debt in respect of which he was imprisoned, together with the costs (if any). 10. Where the plaintiff in any action before the High Court or any subordinate court proves at any time before final judgment by evidence on oath to the satisfaction of the court that he has good cause of action against the defendant to the amount of twenty kwacha or upwards, and that there is probable cause for believing that the defendant is about to quit Zambia unless he be apprehended, and that(a) the absence of the defendant from Zambia will materially prejudice the plaintiff in the prosecution of his action or in his obtaining satisfaction therein; or (b) the defendant has disposed of or removed out of Zambia his property or any part thereof and the execution of any judgment or order Power under certain circumstances to arrest defendant about to quit Zambia

will be thereby obstructed or delayed; such court may, in the prescribed manner, order such defendant to be arrested and imprisoned for a period not exceeding six months unless and until he has sooner given the prescribed security not exceeding the amount claimed in the action that he will not leave Zambia without the leave of the court: Provided that(i) the court may release the defendant at any time on such terms as may seem just, and, in any event, no such defendant shall be detained in custody after the date of final judgment; (ii) any order made by a subordinate court of the second or third class shall be reported forthwith to the High Court which shall have full power, with or without argument, to reverse or vary any such order. (As amended by No. 8 of 1962) 11. (1) Where any judgment creditor proves at any time by evidence on Power under certain oath to the satisfaction of the court in which the judgment has been circumstances obtained or a court in which the judgment has been registeredto arrest judgment debtor about to leave Zambia (a) that the amount outstanding on the judgment is not less than twenty kwacha; and (b) that there is probable cause for believing that the judgment debtor is about to leave Zambia or has disposed of or removed out of Zambia his property or any part thereof or that there is probable cause for believing that he is about so to do; and (c) that the execution of the judgment will be thereby materially obstructed or delayed; such court may, in the prescribed manner, order such judgment debtor to be arrested and imprisoned for a period not exceeding fourteen days unless and until he has sooner given such security as may be determined by the court not exceeding the amount outstanding on the judgment that he will not leave Zambia without the leave of the court:

Provided that(i) the court may release the judgment debtor at any time on such terms as may seem just and in any event no such judgment debtor shall be detained in custody after the date of satisfaction of the judgment; (ii) any order made by a subordinate court of the second or third class shall be reported forthwith to the High Court which shall have full power, with or without argument, to reverse or vary any such order. (2) Any person who maliciously and unreasonably obtains the issue of a warrant under the provisions of this section shall be liable to the judgment debtor for any damage suffered by the latter in consequence of the issue of such warrant. (No. 8 of 1962) 12. The provisions of this Act shall apply in the case of civil proceedings by the State. (No. 27 of 1965) This Act to apply to civil proceedings by the State

CHAPTER 78 THE CIVIL COURTS (ATTACHMENT OF DEBTS) ACT

ARRANGEMENT OF SECTIONS

Section 1. 2. 3. 4. 5. debtor 6. 7. Short title Examination of judgment debtor as to debts due to him Court may order an attachment of debts Order for attachment to bind debts Proceedings to levy amount due from garnishee to judgment Court may allow judgment creditor to sue garnishee Garnishee discharged

8. 9. 10. 11. 12.

Court may refuse to interfere in proceedings to attach debts Proceedings where third person has a lien on the debt Court may bar claim of third person and make orders Costs of application No attachment of wages or salaries

CHAPTER 78

CIVIL COURTS (ATTACHMENT OF DEBTS) An Act to make provision for the attachment of debts; and to provide for matters incidental to or connected therewith. [15th August, 1940] 1. This Act may be cited as the Civil Courts (Attachment of Debts) Act. 2. It shall be lawful for any creditor who has obtained a judgment in any court in Zambia to apply to the court for a rule or order that the judgment debtor should be orally examined before the court as to any and what debts are owing to him; and the court may make such rule or order for the examination of such judgment debtor and for the production of any books or documents. 3. It shall be lawful for a court, upon the ex parte application of such judgment creditor, either before or after such oral examination and upon affidavit by himself or his attorney stating that judgment has been recovered, and that it is still unsatisfied, and to what amount, and that any other person is indebted to the judgment debtor, and is within the jurisdiction of the court, to order that all debts owing or accruing from such third person (hereinafter called the garnishee) to the judgment debtor shall be attached to answer the judgment debt; and, by the same or any subsequent order, it may be ordered that the garnishee shall appear before the court to show cause why he should not pay the judgment creditor the debt due from him to the judgment debtor, or so much thereof as may be sufficient to satisfy the judgment debt.

12 of 1940 4 of 1943 Government Notice 497 of 1964

Short title

Examination of judgment debtor as to debts due to him

Court may order an attachment of debts

4. Service of an order that debts due or accruing to the judgment debtor Order for shall be attached, or notice thereof to the garnishee, in such manner as attachment to the court shall direct, shall bind such debts in his hands. bind debts 5. If the garnishee does not forthwith pay into court the amount due from him to the judgment debtor, or an amount equal to the judgment debt, and does not dispute the debt due or claimed to be due from him to the judgment debtor, or if he does not appear upon summons, then the court may order execution to issue, and it may be sued forth accordingly, without any previous writ or process, to levy the amount due from such garnishee towards satisfaction of the judgment debt. 6. If the garnishee disputes his liability, the court, instead of making an order that execution shall issue, may order that the judgment creditor shall be at liberty to proceed against the garnishee by writ, calling upon him to show cause why there should not be execution against him for the alleged debts, and for costs of suit. Proceedings to levy amount due from garnishee to judgment debtor

Court may allow judgment creditor to sue garnishee

7. Payment made by or execution levied upon the garnishee under any Garnishee such proceeding as aforesaid shall be a valid discharge to him as against discharged the judgment debtor to the amount paid or levied, although such proceedings may be set aside or the judgment reversed. 8. In any proceedings to obtain an attachment of debts under this Act, the court may, in its discretion, refuse to interfere, where from the smallness of the amount to be recovered, or of the debt sought to be attached, or otherwise, the remedy sought would be worthless or vexatious. 9. Whenever in proceedings under this Act to obtain an attachment of debts it is suggested by the garnishee that the debt sought to be attached belongs to some third person who has a lien or charge upon it, the court may order such third person to appear before it, and state the nature and particulars of his claim upon such debt. 10. After hearing the allegations of such third person under such order, and of any other person whom, by the same or any subsequent order, the court may think fit to call before it, or in the case of such third person not appearing before it upon such summons, the court may order execution Court may refuse to interfere in proceedings to attach debts Proceedings where third person has a lien on the debt

Court may bar claim of third person and make orders

to issue to levy the amount due from such garnishee, or the judgment creditor to proceed against the garnishee according to the provisions of this Act, and it may bar the claim of such third person, or make such other order as it shall think fit, upon such terms, in all cases, with respect to the lien or charge (if any) of such third person, and to costs, as it shall think just and reasonable. 11. The costs of any application for an attachment of debts under this Act, and of any proceedings arising from or incidental to such application, shall be in the discretion of the court. Costs of applications

12. Notwithstanding anything in this Act contained, wages and salaries No attachment shall not be liable to attachment: of wages or salaries Provided that the provision contained in this section shall not be deemed to prevent the attachment of any wages or salary for the purpose of enforcing an affiliation order, maintenance order or a judgment for damages in respect of personal injury. (As amended by No. 4 of 1943)

CHAPTER 79 THE SERVICE OF PROCESS AND EXECUTION OF JUDGMENTS ACT

ARRANGEMENT OF SECTIONS

PART I PRELIMINARY Section 1. 2. Short title Interpretation

PART II SERVICE OF SUMMONS IN CIVIL PROCEEDINGS

ISSUED OUT OF A COURT IN ZIMBABWE OR MALAWI IN ZAMBIA AND PROCEEDINGS CONSEQUENT THEREON 3. 4. 5. 6. Service of certain summons and process in Zambia Endorsement of summons Failure to endorse summons Entry of appearance

PART III SERVICE OF SUMMONS IN CRIMINAL PROCEEDINGS AND EXECUTION OF WARRANTS 7. 8. Service of summons in criminal proceedings in Zambia Execution of warrant of imprisonment for non-payment of fine

PART IV SERVICE OF A SUBPOENA 9. Service of a subpoena in Zambia

PART V ENFORCEMENT OF A JUDGMENT 10. 11. 12. 13. Section 14. 15. Stay of proceedings Notification of proceedings upon a certificate Definition of "judgment" Enforcement of a judgment in Zambia Costs Affidavit of liability to be filed

PART VI GENERAL 16. 17. Proof of service Regulations

CHAPTER 79

SERVICE OF PROCESS AND EXECUTION OF JUDGMENTS An Act to provide for the service in Zambia of civil and criminal process of any court of record in Zimbabwe or Malawi, the execution in Zambia of civil judgments of any such court, and for matters incidental to the foregoing. [1st February, 1957]

4 of 1956 7 of 1963 Government Notices 335 of 1964 497 of 1964 Statutory Instruments 169 of 1965 21 of 1967 196 of 1969

PART I PRELIMINARY 1. This Act may be cited as the Service of Process and Execution of Judgments Act. (As amended by G.N. No. 335 of 1964) 2. In this Act, unless the context otherwise requiresInterpretation Short title

"court" means any court (other than the Supreme Court for Zambia, any Cap. 29 court established by or under the Local Courts Act, of Zimbabwe, Zambia or Malawi and is required by such law to keep a record of its proceedings; "defendant" includes any party against whom relief is sought in a suit or who is required to attend the proceedings in any suit as a party thereto; "party" includes the Government or any person suing or being sued on behalf of the Government; "person" includes any company or association or a body of persons, corporate or unincorporate, and the Government;

"plaintiff" includes any party seeking relief in a suit against any other party; "proper officer" means the Registrar of the High Court of Zimbabwe, Malawi or the High Court for Zambia, the clerk of an inferior court of Zimbabwe or Malawi or of a subordinate court of Zambia, or any other similar officer, as the case may be; "suit" means any suit or action or other original proceedings in any court between parties commenced by a summons or in any such other manner as may be provided by or under any law in force in Zimbabwe, Zambia or Malawi, but does not include any criminal proceedings; "summons" means(a) in relation to a suit any summons, writ of summons, concurrent writ of summons, originating summons or other process by which a suit is commenced or the object of which is to require the appearance in any court of any person against whom relief is sought in a suit, or who is interested in resisting such relief; (b) in relation to any criminal proceedings, a summons or other similar process which directs any person to appear before any court to answer a charge or complaint of having committed an offence. (As amended by G.N. No. 335 of 1964 and S.I. No. 169 of 1965)

PART II SERVICE OF SUMMONS IN CIVIL PROCEEDINGS ISSUED OUT OF A COURT IN ZIMBABWE OR MALAWI IN ZAMBIA AND PROCEEDINGS CONSEQUENT THEREON 3. Whenever in a suit in a court in Zimbabwe or Malawi any summons Service of certain summons and or other process (other than a subpoena) is required to be served in process in Zambia Zambia, such service may be effected in such manner and by such person as may be prescribed. (G.N. No. 335 of 1964)

Endorsement of 4. (1) Every summons for service under the provisions of this Part shall, in addition to any other endorsement or notice required by any law summons in force in Zimbabwe or Malawi and the endorsement or annexure required by subsection (2), have-

(a)

the following endorsement thereon:

"This summons (or other process, as the case may be) is to be served out of the Territory of and in Zambia under the provisions of the Service of Process and Execution of Judgments Act."; and (b) such other endorsement as may be prescribed.

(2) Every summons for service under the provisions of this Part shall contain and have endorsed thereon or annexed thereto a short statement of the nature of the claim made or relief sought by the plaintiff in the suit and, if the plaintiff sues in a representative capacity, shall state the capacity in which he sues. (As amended by G.N. No. 335 of 1964) 5. If a summons or a copy thereof does not bear all the endorsements or Failure to endorse summons annexures required by or under this Part, it shall be ineffective for service under the provisions of this Part. 6. (1) The period fixed by a summons for service under the provisions Entry of appearance of this Part for appearance being entered by the defendant shall, notwithstanding the provisions of any rules of court governing the time for the entry of appearance, be such period, not being less than twenty-one days, as the proper officer of the court out of which the summons was issued may determine. (2) Every appearance entered by or on behalf of a defendant to a summons served upon him under the provisions of this Part shall, subject to the provisions of subsection (1), be entered in accordance with the rules of the court out of which the summons was issued and shall, in accordance with such rules, give an address at which all process, proceedings and notices may be served upon or left for him.

(3) If such address is not given or is fictitious or illusory, the appearance may be set aside as irregular.

PART III SERVICE OF SUMMONS PROCEEDINGS EXECUTION OF WARRANTS IN CRIMINAL AND

7. (1) Whenever a summons has been issued in Zimbabwe or Malawi directing any person to appear before a court of the State in which the summons was issued to answer a charge or complaint of having committed an offence in respect of which such court has jurisdiction, the summons may be served on that person in Zambia in such manner and by such person as may be prescribed. (2) Every summons for service under the provisions of this Part shall, in addition to any other endorsement required by any law in force in the State in which the summons was issued, have(a) the following endorsement thereon:

Service of summons in criminal proceedings in Zambia

"This summons (or other process, as the case may be) is to be served out of the State of and in Zambia under the provisions of the Service of Process and Execution of Judgments Act."; and (b) such other endorsement as may be prescribed.

(3) If a summons or copy thereof does not bear all the endorsements required by or under this Part, it shall be ineffective for service under the provisions of this Part. (4) If there is produced to a magistrate a warrant for the apprehension of the person upon whom a summons was so served as aforesaid in respect of the failure of such person to appear at the time and place mentioned in the summons and if the magistrate is satisfied that such summons was duly served within a sufficient time before the day appointed for the

hearing and that such warrant was issued by the court from which such summons was issued, he shall endorse the warrant in the manner prescribed and thereafter it may be executed in Zambia and shall be sufficient authority for any person charged with the execution of warrants in Zambia to apprehend the person against whom the warrant was issued and bring him before a magistrate having jurisdiction in the area in which the person was apprehended. (5) Such magistrate may(a) order the person to be sent to the jurisdiction in which the warrant was issued and, for that purpose, direct that he be detained in a prison for a period not exceeding ten days pending his delivery into the custody of any person to whom the warrant was originally directed; or (b) admit the person to bail on such recognizance as he thinks fit on condition that such person appears at an appointed time and place in the jurisdiction in which the warrant was issued. (6) Whenever any person has been admitted to bail in accordance with the provisions of paragraph (b) of subsection (5), and the court admitting the person to bail is satisfied that the person has failed to comply with the conditions of the recognizance on which he was admitted to bail, the court may declare the recognizance to be forfeited and the payment of any sum due by any person under the recognizance may be enforced in the same manner as a fine imposed by that court. (7) Any sum recovered by virtue of the provisions of subsection (6) shall be transmitted to the proper officer of the court out of which the warrant was issued. (As amended by G.N. No. 335 of 1964) 8. Whenever a court in Zimbabwe or Malawi issues a warrant for the imprisonment of a convicted person who has failed to pay a fine imposed by that court, the warrant may, if it is endorsed in the manner prescribed, be executed in Zambia and shall be sufficient authority for(a) any person charged with the execution of warrants to apprehend such convicted person and lodge him in the nearest prison; and (b) the officer in charge of any prison and all other persons to carry into effect the sentence described in the warrant:
Execution of warrant of imprisonment for non-payment of fine

Provided that, if such convicted person tenders to the person executing the warrant the full amount of the fine imposed by the court, the warrant shall not be executed and the full amount of the fine shall be transmitted to the proper officer of the court out of which the warrant was issued. (No. 7 of 1963 as amended by G.N. No. 335 of 1964)

PART IV SERVICE OF A SUBPOENA 9. (1) Whenever a subpoena has been issued by a court in Zimbabwe or Service of a subpoena in Malawi requiring any person to appear to give evidence or to produce any books or documents in any criminal or civil proceedings before such Zambia court, such subpoena may be served on that person in Zambia in such manner and by such person as may be prescribed if there have been transmitted to the person who is to effect service of the subpoena the expenses of such service and the reasonable expenses to be incurred by the person required to appear to give evidence or to produce the books or documents in going to and returning from the court named in the subpoena and to be incurred by him during his detention at the place where his evidence has to be given or the books or docments have to be produced. (2) If there is produced to a magistrate a warrant for the apprehension of the person upon whom a subpoena was so served in respect of his failure to appear at the time and place mentioned in the subpoena and the magistrate is satisfied that(a) the subpoena was duly served within a sufficient time before the time mentioned in the subpoena; and (b) the warrant was issued by the court by which the subpoena was issued; and (c) a reasonable sum was paid or tendered for such person's expenses; the magistrate shall endorse the warrant in the manner prescribed and thereafter it may be executed in Zambia and shall be sufficient authority

for any person charged with the execution of warrants in Zambia to apprehend the person against whom the warrant was issued and bring him before a magistrate having jurisdiction in the area in which the person was apprehended. (3) The provisions of subsections (5), (6) and (7) of section seven shall apply in relation to a warrant endorsed under the provisions of subsection (2) in the same manner as if the warrant had been endorsed under the provisions of subsection (4) of section seven. (As amended by G.N. No. 335 of 1964)

PART V ENFORCEMENT OF A JUDGMENT 10. In this Part, unless the context otherwise requiresDefinition of "judgment"

"judgment" means(a) any judgment or order whereunder a sum of money is payable, given or made by a court in any civil proceedings, but does not include an order, other than an order made against a father for the maintenance of an illegitimate child, for the periodical payment of sums of money towards the maintenance of the wife or other dependants (including any woman from whom he has been divorced) of the person against whom the order is made; (b) an award in proceedings on an arbitration, if the award has, in pursuance of the law in force in the jurisdiction where it was made, become enforceable in the same manner as a judgment given by a court in that jurisdiction; or (c) any judgment or order given or made by a court in any criminal proceedings whereunder a sum of money is payable in respect of compensation or damages to an injured person. (As amended by G.N. No. 335 of 1964) 11. (1) Where a judgment is given or has, before the 1st January, 1964, Enforcement of a judgment in been given in a court of Zimbabwe or Malawi, any person in whose Zambia favour such judgment is or has been given may obtain registration in Zambia of the certificate of such judgment by the production of a

certificate of such judgment to the proper officer of(a) the High Court for Zambia, in the case of a certificate granted by the proper officer of the High Court of Zimbabwe or Malawi or (b) a subordinate court of Zambia, in the case of a certificate granted by the proper officer of an inferior court of Zimbabwe or Malawi. (2) Upon the production of him of such certificate, the proper officer shall register the certificate by entering the particulars thereof in a register to be kept by him and to be called "The Register of Zimbabwe and Malawi Judgments". (3) On registration thereof, such certificate shall be a record of the court in which it is registered and shall have the same force and effect in all respects as a judgment of that court, and the like proceedings, including, as the case may be, proceedings in bankruptcy or insolvency or for the compulsory winding up of a body corporate, may be taken upon the certificate as if the judgment had been a judgment of that court, and interest shall be payable thereunder at the rate, if any, and from the date specified therein. (4) No such certificate shall be registered after the expiration of a period of twelve months from the date of the judgment to which the certificate relates without the leave of the court in which it is desired to register the certificate. (As amended by G.N. No. 335 of 1964 and S.I. No. 169 of 1965) 12. (1) Upon being satisfied that the registration of a certificate was reasonable and justifiable under the circumstances, the court in which the certificate has been registered may order that the plaintiff's costs of registration and other proceedings under this Act, in an amount to be determined by the court, but not exceeding such amount as may be prescribed, shall be paid by the defendant to the plaintiff. (2) Any such order shal be deemed to be incorporated in the certificate and the amount payable thereunder shall be deemed to be payable under the certificate.
Costs

(3) For the purposes of this section, "plaintiff", in relation to a judgment referred to in paragraph (c) of section ten, means the person to whom the sum of money is payable under the judgment, and "defendant" means the person liable to pay such sum of money. (As amended by S.I. No. 169 of 1965) 13. No execution shall be issued or other proceedings taken upon any Affidavit of liability to be filed such certificate unless there is filed in the court out of which it is intended to issue execution or take such other proceedings an affidavit made by the person in whose favour the judgment is given or by some other person cognizant of the facts of the case stating that the amount for which execution is proposed to be issued or other proceedings to be taken is actually due and payable. 14. The court in which any such certificate has been registered may, on Stay of proceedings the application of any person against whom the judgment was given(a) order a stay of the proceedings on such terms as to the giving of security or as to the making of an application to the court by which the judgment was given to set aside the judgment; or (b) grant such other relief; as it may deem fit. 15. (1) WheneverNotification of proceedings upon a certificate

(a)

any such certificate is registered in any court; or

(b) any execution is issued or any other proceedings are taken upon any such certificate; the proper officer shall forthwith notify the proper officer of the court in which the judgment was given accordingly. (2) Whenever a judgment in respect of which a certificate has been registered in a court of Zimbabwe or Malawi has been set aside or varied, the proper officer of the court in which the judgment was given shall forthwith-

(a) in the case where the judgment has been set aside, notify in writing the proper officer of every court in which the certificate has been registered; and (b) in the case where the judgment has been varied, forward to the proper officer of every court in which the certificate was registered notice in writing that the judgment has been varied and a certificate under his hand and seal of the judgment so varied. (3) Whenever any judgment in respect of which a certificate has been registered in any court of Zimbabwe or Malawi has been satisfied in whole or in part, the proper officer of the court in which the judgment was given shall forthwith, upon such satisfaction being made or notified, as the case may be, enter such satisfaction upon the judgment and notify in writing the proper officer of every court in which the certificate has been registered. (4) Where a certificate in respect of a judgment given in Zimbabwe or Malawi has been registered in any court in Zambia and(a) the proper officer of that court receives notice in writing from the proper officer of the court in which the judgment was given that the judgment has been set aside, the first-mentioned proper officer shall cancel the registration of the certificate; (b) the proper officer of that court receives notice in writing from the proper officer of the court in which the judgment was given of the variation of the judgment and a certificate under the hand and seal of that proper officer of the judgment so varied, the first-mentioned proper officer shall cancel the registration of the certificate and register the new certificate of the judgment in the manner provided in subsection (2) of section eleven, and thereafter the provisions of subsection (3) of section eleven and of sections thirteen and fourteen and of subsection (1) shall apply in relation thereto. (5) Whenever the proper officer of a court in Zambia receives notice in writing from the proper officer of a court in Zimbabwe or Malawi that a judgment in respect of which a certificate has been registered in the court of such first-mentioned proper officer has been satisfied in whole or in part, the proper officer receiving such notice shall enter such satisfaction upon the certificate so registered.

(As amended by G.N. No. 335 of 1964)

PART VI GENERAL 16. Whenever any process issued in Zambia has been served in Zimbabwe or Malawi, such service may be proved(a) by an affidavit sworn before a justice of the peace, commissioner of oaths, notary public, or any other person having authority to administer oaths in the jurisdiction in which the service was effected; or (b) in such other manner as may be prescribed. (As amended by G.N. No. 335 of 1964)
Regulations 17. (1) The Attorney-General may, by statutory instrument, make regulations for the better carrying out of the objects and purposes of this Act, and without derogation from the generality of the foregoing, may make regulationsProof of service

(a) (b)

in respect of any matter which may be prescribed; and prescribing fees for the service of any process under the provisions of this Act.

(2) Different regulations may be made under this section in respect of different courts. (As amended by G.N. No. 335 of 1964 and S.I. No. 196 of 1969)
SUBSIDIARY LEGISLATION
Cap. 79

THE SERVICE OF PROCESS AND EXECUTION OF JUDGMENTS REGULATIONS [ARRANGEMENT OF REGULATIONS]

PART I PRELIMINARY
Regulation 1. 2. Title Interpretation

PART II SERVICE OF PROCESS

3. 4. 5. a suit 6. 7. 8. 9. 10. 11. 12. Persons authorised to effect service Time when service may be effected Service of summons or other process (other than a subpoena) in Endorsement of summons in a suit Service of summons in criminal proceedings Endorsement of warrants in criminal proceedings Service of subpoena Duties of person effecting service Proof of service Fees for the service of process

PART III EXECUTION OF JUDGMENTS

13. 14. Contents and form of certificate of judgment Costs of registration of certificate of judgment

FIRST SCHEDULE-Form of endorsement of warrant SECOND SCHEDULE-Form of certificate of service THIRD SCHEDULE-Form of certificate of judgment

SECTION 17-THE SERVICE OF PROCESS EXECUTION OF JUDGMENTS REGULATIONS Regulations by the Attorney-General

AND

Federal Government Notices 23 of 1957 50 of 1963 275 of 1963 Government Notices 351 of 1964 497 of 1964 Statutory Instrument 222 of 1965 47 of 1995 48 of 1995

PART I PRELIMINARY
1. These Regulations may be cited as the Service of Process and Execution of Judgments Regulations. 2. In these Regulations, unless the context otherwise requiresTitle

Interpretation

"copy", in relation to a summons, subpoena or other process, means a correct copy of the original thereof, certified as such under the hand and office stamp of the proper officer of the court out of which such summons, subpoena or other process was issued and bearing the seal, if any, of that court;
Cap. 27 "inferior court" means any court (other than the Supreme Court for Zambia, a High Court and any court established by or under the Local Cap. 29 Courts Act, or which is established by any law of Zimbabwe, Zambia or Malawi and is required by such law to keep a record of its proceedings;

"sheriff" means a sheriff, deputy sheriff or under-sheriff of the State in which a summons, subpoena or other process is to be served. (As amended by G.N. No. 351 of 1964 and S.I. No. 222 of 1965)

PART II SERVICE OF PROCESS

3. (1) Where any summons, subpoena or other process is required to be Persons authorised served under the provisions of the Act on a sheriff or messenger of the to effect service court or on any member of the household of a sheriff or messenger of the court, such service shall be effected by a person appointed(a) in the case of a summons, subpoena or other process issued out of the High Court of Zimbabwe or Malawi, by the High Court for Zambia or a Judge thereof sitting in chambers; (b) in the case of a summons, subpoena or other process issued out of an inferior court of Zimbabwe or Malawi, by a magistrate having jurisdiction in the area of Zambia in which service is to be effected. (2) Save as otherwise provided in sub-regulation (1), a summons, subpoena or other process required to be served under the provisions of the Act may be served(a) in the case of a summons, subpoena or other process issued out of the High Court of Zimbabwe or Malawi, by any person who is, under the law in force in Zambia, authorised to serve a summons, subpoena or other process of the High Court for Zambia; (b) in the case of a summons, subpoena or other process issued out of an inferior court of Zimbabwe or Malawi, by any person who is, under the law in force in Zambia, authorised to serve a summons, subpoena or other process of a subordinate court of Zambia. (As amended by G.N. No. 351 of 1964 and S.I. No. 222 of 1965) 4. A summons, subpoena or other process required to be served under Time when service the provisions of the Act may be served on such day and at such time as may be effected is permitted in respect of the service of similar process issued out of a court of Zambia. (As amended by G.N. No. 351 of 1964 and S.I. No. 222 of 1965)

5. (1) Subject to the provisions of this regulation, where a summons or Service of other process (other than a subpoena) is required to be served under the summons or other process (other than provisions of Part II of the Acta subpoena) in a suit

(a) on a person other than a body corporate, such service may be effected(i) on him personally or on his duly authorised agent; or (ii) at his place of residence on any responsible member of his household; or (iii) at his place of business on any responsible person employed there; or (iv) at his place of employment on the manager or other person under whose supervision he works; or (v) if he has chosen in Zambia an address for service, at the address so chosen; (b) on an incorporated company or other body corporate, such service may be effected at its registered or local office on a director, or the secretary, local manager or other principal officer of such company or body; (c) on a partnership, such service may be effected-

(i) on any one or more of the partners in any manner prescribed in paragraph (a); or (ii) at the principal place of business of the partnership on any person having, at the time of the service, the control or management of the partnership business; (d) on two or more persons sued in their capacity as trustees of an insolvent or bankrupt estate, judicial managers, trustees or administrators, liquidators of a company, executors, guardians or a committee in lunacy, such service may be effected on any one of such persons in any manner prescribed in paragraph (a); (e) on a syndicate, unincorporated company, club, society, church, public institution or other body, such service may be effected(i) on the persons named in the summons or other process in any

manner prescribed in paragraph (a); or (ii) if the syndicate, unincorporated company, club, society, church, public institution or other body has been sued or cited in its unincorporate name, at the local office or place of business of such body or, if there is none, on the chairman, secretary or other officer thereof in any manner prescribed in paragraph (a); (f) on a person detained in any prison established by law, such service may be effected at the prison on the officer in charge thereof who shall cause the summons or other process to be delivered and explained to such person; (g) on the sovereign Republic of Zambia, such service may be effected on the Attorney-General or the officer of the Attorney-General's Chambers having the conduct of the proceedings to which such summons or other process relates; (h) on a person of unsound mind in respect of whom a committee has not been appointed or who has not been so found by inquisition, such service may be effected on the person with whom such person of unsound mind resides or under whose care he is. (2) When a rule nisi or decree nisi issued in any proceedings relating to divorce, judicial separation or nullity of marriage is required to be served under the provisions of Part II of the Act, such service shall be effected on the person named therein personally. (3) If a person required to be served under the provisions of Part II of the Act keeps his residence or place of business closed and thereby prevents service being effected in a manner prescribed in sub-regulation (1), such service may be effected by affixing a copy of the summons or other process to the outer or principal door of his residence or place of business. (As amended by G.N. No. 351 of 1964 and S.I. No. 222 of 1965) 6. Every summons for service under the provisions of Part II of the Act Endorsement of summons in a suit shall, if the law in force in the State in which it is issued requires an appearance to be entered, have the following endorsement thereon: "If you enter an appearance to this summons (or other process, as the case may be) you must give an address for service at some place within

five miles of the .................................... Court of ..................................... at ...................................., at which documents or notices may be left or served". 7. Where a summons is required to be served under the provisions of Part III of the ActService of summons in (a) on any person other than an incorporated company or other body criminal proceedings corporate, such service may be effected(i) (ii) on him personally; or if he cannot, after diligent search, be found, thenA. at his place of residence on any responsible member of his household; B. at his place of business on any responsible person employed there; or C. at his place of employment on the manager or other person under whose supervision he works; or (iii) if service in any manner prescribed in subparagraph (i) or (ii) cannot, by the exercise of reasonable diligence, be effected, then by affixing a copy of the summons to the outer or principal door of the house in which the person to be served ordinarily resides; (b) on an incorporated company or other body corporate, such service may be effected at its registered or local office on a director or the secretary, local manager or other principal officer of such company or body. 8. (1) A warrant issued under the provisions of section seven of the Act Endorsement of warrants in shall be endorsed in the manner set out in Part I of the First Schedule.
criminal proceedings

(2) A warrant issued by a court in Zimbabwe or Malawi for the imprisonment of a convicted person who has failed to pay a fine imposed by that court shall, if it is to be executed in Zambia, be

endorsed in the manner set out in Part II of the First Schedule by a magistrate of Zambia. (F.G.N. No. 275 of 1963 as amended by G.N. No. 351 of 1964 and S.I. No. 222 of 1965) 9. Where a subpoena is required to be served under the provisions of Service of subpoena Part IV of the Act, such service shall be effected on the person named therein personally or if he cannot, after diligent search, be found, then in any manner prescribed in paragraph (a) of sub-regulation (1) of regulation 5 or sub-regulation (3) of regulation 5, as may be appropriate, for service of a summons or other process in a suit. 10. (1) Subject to the provisions of sub-regulation (2), the person serving any summons, subpoena or other process under the provisions of the Act shall, if such service is effected on a person(a) deliver to such person a copy of the summons, subpoena or other process and exhibit to him the original or a duplicate original thereof; and (b) if so requested by such person and able to do so, explain to him the contents and exigency of the summons, subpoena or other process. (2) Where by reason of the violent behaviour of, or threats of violent behaviour made by, the person on whom the service is to be effected or any person acting in concert with him, service of any process under the provisions of the Act cannot be effected in accordance with the provisions of sub-regulation (1), such service may be effected by informing the person on whom service is to be effected of the nature of the process and by leaving a copy thereof as near to him as is practicable in the circumstances.
Proof of service 11. (1) Where service of any process under the provisions of the Act has been effected by a sheriff, messenger or other officer of the court, such service may be proved by a certificate of service in the form set out in the Second Schedule. Duties of person effecting service

(2) Where service of any process under the provisions of the Act has been effected by any other person, such service may be proved by an affidavit sworn in the manner prescribed in paragraph (a) of section

sixteen of the Act and endorsed on or attached to the original or a duplicate original of such process verifying the manner, time and place of service and the person, if any, on whom service was effected. (3) A certificate of service in the form set out in the Second Schedule shall, on production and without proof of signature, be prima facie evidence of the facts therein stated. (4) The person who has effected service of any process under the provisions of the Act shall forthwith deliver to the person from whom the process was received(a) (b) the original or a duplicate original of the process served; the affidavit referred to in sub-regulation (2) or a certificate of service in the form set out in the Second Schedule, as the case may be; and a statement of the charges for effecting such service.

(c)

Fees for the service 12. The person serving any process under the provisions of the Act shall be entitled to receive therefor such fees (including any allowances of process in respect of travelling and subsistence expenses) as are prescribed for the service of similar process, notwithstanding that he is not a person or member of a class of persons in respect of whom such fees are so prescribed.

(As amended by G.N. No. 351 of 1964)

PART III EXECUTION OF JUDGMENTS

13. A certificate of judgment issued in accordance with the provisions Contents and of section eleven of the Act shallform of certificate of (a) contain the following particulars of the judgment: judgment

(i) (ii)

the number of the cause or case; the names of the plaintiff and defendant;

(iii) the name and address of the party against whom the judgment has been given; (iv) the date on which the judgment was given;

(v) an abstract of the judgment specifying, in particular, any amount ordered to be paid, any interest payable thereon and the taxed or approved costs; (b) be in the form set out in the Third Schdule.

14. The amount of the plaintiff's costs of registration of a certificate of Costs of registration of judgment shall not exceed(a) in the case of a certificate registered in a High Court, the sum of certificate of judgment K800; (b) in the case of a certificate registered in an inferior court, the sum of K800. (As amended by F.G.N. No. 50 of 1963, S.I. No. 47 of 1995, and S.I. No. 48 of 1995)

FIRST SCHEDULE
(Regulation 8)

PART I
FORM OF ENDORSEMENT OF WARRANT The within warrant, duly signed by a (Judge or magistrate), and sealed with the seal, if any, of the Court at having this day been produced to me by I do hereby authorise the ................................................... and all other persons to whom this warrant is directed, or by whom it may be lawfully executed and also police officers of Zambia to execute this warrant and to bring the said if he be apprehended before me or some magistrate having jurisdiction in the area in which he has been apprehended to be dealt with according to law. Given under my hand at this .................................................... day of . 19.......... Signature

PART II
FORM OF ENDORSEMENT OF WARRANT The within warrant, duly signed by a (Judge or magistrate), and sealed with the seal, if any, of the Court at having this day been produced to me by I do hereby authorise the ................................................... and all other persons to whom this warrant is directed, or by whom it may be lawfully executed and also police officers of Zambia to execute this warrant and to lodge the said if he be apprehended in the nearest prison, to be dealt with according to law. Given under my hand at.......... this..........day of..........19......... Signature (G.N. No. 351 of 1964 as amended by S.I. No. 222 of 1965)

SECOND SCHEDULE (Regulation 11)

FORM OF CERTIFICATE OF SERVICE

I, a .............................................................. of the .................................................. Court at hereby certify that I have this .............. day of , 19......, served a true copy of this upon , the defendant/respondent named therein at and that I have/have not explained to him the contents and exigency thereof. Dated at ........................................ this .............. day of . , 19.......... Signature

THIRD SCHEDULE (Regulation 13)

FORM OF CERTIFICATE OF JUDGMENT

No. of cause or case

Names of Plaintiff/Applicant and Defendant/Respondent

Name and address of party against whom judgment is given

Date of judgment or decree

p an

I certifiy that this certificate contains an accurate and correct statement of the particulars of a judgment g at .................................................................................... on the .................................................... day of , 19

Dated this ............................................................. day of .............................................................................

Chapter 80 : Vacant CHAPTER 81 THE JUDGMENTS ACT

ARRANGEMENT OF SECTIONS

Section 1. 2. Short title Judgment debts, etc., to carry interest

CHAPTER 81

JUDGMENTS

10of 1961 16 of 1997

An Act to provide for the payment of interest on judgment debts. [5th May, 1961] 1. (1) This Act may be cited as the Judgments (Amendment) Act, 1997, Short title and shall be read as one with the Judgments Act, in this Act referred to as the principal Act. (2)Subject to section three, this Act shall come into operation on the date of publication.
Judgment debts, 2. Every judgment, order, or decree of the High Court or of a subordinate court whereby any sum of money, or any costs, charges or etc., to carry expenses, is or are to be payable to any person shall carry interest as may interest be determined by the court which rate shall not exceed the current lending rate as determined by the Bank of Zambia from the time of entering up such judgment, order, or decree until the same shall be satisfied, and such interest may be levied under a writ of execution on such judgment, order, or decree.

CHAPTER 82 THE BANKRUPTCY ACT

ARRANGEMENT OF SECTIONS

PART I PRELIMINARY Section 1. 2. Short title Interpretation

PART II PROCEEDINGS FROM ACT OF BANKRUPTCY TO DISCHARGE Acts of Bankruptcy 3. 4. Acts of bankruptcy Bankruptcy notices

Receiving Order 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. Jurisdiction to make receiving order Conditions on which creditor may petition Proceedings and order on creditor's petition Debtor's petition and order thereon Effect of receiving order Power to appoint interim receiver Power to stay pending proceedings Power to appoint special manager Advertisement of receiving order Power to rescind receiving order in certain cases

Proceedings Consequent on Order 15. 16. First and other meetings of creditors Debtor's statement of affairs

Public Examination of Debtor 17. Public examination of debtor

Composition or Scheme of Arrangement 18. Section 19. Effect of composition or scheme Compositions and schemes of arrangement

Adjudication of Bankruptcy 20. 21. Adjudication of bankruptcy Appointment of trustee

22.

Committee of inspection

Control over Person and Property of Debtor 23. 24. 25. 26. 27. 28. 29. 30. 31. Duties of debtor as to discovery and realisation of property Address and certain particulars to be furnished Arrest of debtor under certain circumstances Re-direction of debtor's letters Inquiry as to debtor's conduct, dealings and property Discharge of bankrupt Fraudulent settlements Effect of order of discharge Power for court to annul adjudication in certain cases

32. Bankrupt not to act as director or manager of company or to manage business with relative PART III ADMINISTRATION OF PROPERTY Proof of Debts 33. 34. 35. 36. 37. 38. 39. Description of debts provable in bankruptcy Mutual credit and set-off Rules as to proof of debts Priority of debts Preferential claim in case of apprenticeship Landlord's power of distress in case of bankruptcy Postponement of claims

Property Available for Payment of Debts 40. 41. 42. Relation back of trustee's title Description of bankrupt's property divisible amongst creditors Provisions as to second bankruptcy

Effect of Bankruptcy on Antecedent and Other Transactions Section 43. Restriction of rights of creditor under execution or attachment

44. 45.

Duties of sheriff as to goods taken in execution Avoidance of certain settlements

46. Avoidance of general assignments of book debts unless registered 47. 48. 49. Avoidance of preference in certain cases Protection of bona fide transactions without notice Validity of certain payments to bankrupt and assignee

50. Recovery of property transferred without knowledge of receiving order 51. Dealings with undischarged bankrupt

Realisation of Property 52. 53. 54. 55. 56. 57. Possession of property by trustee Seizure of property of bankrupt Appropriation of portion of salary or wages to creditors Vesting and transfer of property Disclaimer of onerous property Powers of trustee to deal with property

58. Powers exercisable by trustee with permission of committee of inspection 59. 60. 61. 62. Power to allow bankrupt to manage property Allowance to bankrupt for maintenance or service Right of trustee to inspect goods pawned, etc. Limitation of trustee's powers in relation to copyright

63. Protection of official receiver and trustees from personal liability in certain cases Distribution of Property 64. 65. 66. Declaration and distribution of dividends Joint and separate dividends Provision for creditors residing at a distance, etc.

67. Right of creditor who has not proved debt before declaration of a dividend 68. 69. Interest on debts No action for dividend

70.

Right of bankrupt to surplus

PART IV OFFICIAL RECEIVER AND STAFF Section 71. 72. 73. 74. 75. Appointment of official receiver and assistant official receivers Appointment of acting and deputy official receiver Status of official receiver Duties of official receiver as regards debtor's conduct Duties of official receiver as regards debtor's estate

PART V TRUSTEES IN BANKRUPTCY Official Name 76. Official name of trustee

Appointment 77. 78. Power to appoint joint or successive trustees Proceedings in case of vacancy in office of trustee

Control over Trustee 79. 80. 81. Discretionary powers of trustee and control thereof Appeal to court against trustee or official receiver Control of official receiver over trustees

Remuneration and Costs 82. 83. Remuneration of trustee Allowance and taxation of costs

Receipts, Payments, Accounts, Audit 84. 85. 86. 87. Trustee to furnish list of creditors Trustee to furnish statement of accounts Books to be kept by trustee Annual statement of proceedings

88. 89. 90. 91.

Trustee not to pay into private account Bankruptcy Estates Account Investment of surplus funds Audit of trustee's accounts

Vacation of Office by Trustee Section 92. 93. 94. Release of trustee Office of trustee vacated by insolvency Removal of trustee

PART VI CONSTITUTION, PROCEDURE AND POWERS OF COURT Jurisdiction 95. 96. 97. 98. 99. Appeals 100. Appeals in bankruptcy Jurisdiction in bankruptcy Judge may exercise his powers in chambers Jurisdiction in bankruptcy of registrar General powers of bankruptcy courts Power to make receiving order in lieu of committal order

Procedure 101. 102. 103. 104. 105. 106. 107. 108. 109. Discretionary powers of court Consolidation of petitions Power to change carriage of proceedings Continuance of proceedings on death of debtor Power to stay proceedings Power to present petition against one partner Power to dismiss petition against some respondents only Property of partners to vest in same trustee Actions by trustee and bankrupt's partners

110. 111.

Actions on joint contracts Proceedings in partnership name

Orders and Warrants of Court 112. 113. Courts to be auxiliary to other Commonwealth courts Commitment to prison

PART VII SUPPLEMENT PROVISIONS Application of Act 114. 115. 116. 117. Exclusions of companies Limited partnerships Privilege of Parliament Small estates

118. Administration in bankruptcy of estate of person dying insolvent General Rules 119. Power to make general rules

Fees, Remuneration and Audit 120. 121. 122. Fees and percentages Remuneration Audit of accounts of official receiver

Evidence 123. 124. 125. 126. 127. 128. 129. Gazette to be evidence Evidence of proceedings at meetings of creditors Evidence of proceedings in bankruptcy Swearing of affidavits Death of debtor or witness Certificate of appointment of trustee Certificate of acts of official receiver

Miscellaneous

130. 131. 132. 133. 134. 135.

Computation of time Service of notices Formal defects not to invalidate proceedings Repealed by Act No. 17 of 1994 Acting of corporations, partners, etc. Certain provisions to bind the State

Unclaimed Dividends and Indivisible Balances 136. 137. Unclaimed and undistributed dividends or funds Indivisible balances

PART VIII BANKRUPTCY OFFENCES 138. 139. 140. 141. 142. 143. 144. 145. 146. 147. Fraudulent debtors Undischarged bankrupt obtaining credit Frauds by bankrupts, etc. Bankrupt guilty of gambling, etc. Bankrupt failing to keep proper accounts Bankrupt absconding with property False claim, etc. Criminal liability after discharge or composition General penalty Form of charge

148. Evidence as to frauds by directors and officers of corporations or companies PART IX PROVISIONS COUNTRIES 149. 150. 151. FOR RECIPROCITY WITH OTHER

Declaration of reciprocating countries and courts Effect of receiving order, etc., made by reciprocating court against debtor with property in Zambia Vesting of bankruptcy's property in trustee appointed in reciprocating country

152. Powers of official receiver, etc., appointed in reciprocating country 153. Official receiver to act as agent of official receiver, etc., of reciprocating country 154. 155. 156. 157. 158. 159. 160. Mode of requesting official receiver to act as agent Duties of official receiver acting as agent Transmission of proofs of debt Power of court to make orders under sections 11 and 25 Enforcement of warrants of reciprocating court Limitation on powers of court to entertain proceedings Concurrent bankruptcies

161. Power of official receiver, etc., to require official receiver in reciprocating country to act as his agent 162. Power to make rules under Part IX

PART X REPEALS 163. Repeals and savings

FIRST SCHEDULE-Meetings of creditors SECOND SCHEDULE-Proof of debts THIRD SCHEDULE-Enactments repealed

CHAPTER 82

BANKRUPTCY

Act No. 27of 1967

An Act to make provision for the administration in bankruptcy of the estates of debtors; to make provision for punishment of offences committed by debtors; to provide for reciprocity in bankruptcy proceedings between Zambia and other countries; and to provide for matters incidental to and consequential upon the foregoing. [14th April, 1967]

13 of 1994 17of 1994

PART I PRELIMINARY 1. This Act may be cited as the Bankruptcy Act.

Short title

2. In this Act, unless the context otherwise requires"affidavit" includes a statutory declaration, affirmation, and attestation on honour; "available act of bankruptcy" means any act of bankruptcy available for a bankruptcy petition at the date of the presentation of the petition on which the receiving order is made; "the court" means the High Court; "debt provable in bankruptcy" or "provable debt" includes any debt or liability by this Act made provable in bankruptcy; "gazetted" means published in the Gazette; "general rules" and "rules" include forms; "goods" include all chattels personal; "local bank" means any bank in Zambia; "oath" includes affirmation, declaration, and attestation on honour; "ordinary resolution" means a resolution decided by a majority in value of the creditors present, personally or by proxy, at a meeting of creditors and voting on the resolution; "prescribed" means prescribed by general rules within the meaning of this Act;

Interpretation

"property" includes money, goods, things in action, land, and every description of property whether real or personal and whether situate in Zambia or elsewhere; and also obligations, easements, and every description of estate, interest and profit, present or future, vested or contingent, arising out of or incident to property as herein defined; "reciprocating country" means any country declared a reciprocating country under section one hundred and forty-nine; "reciprocating court" means a court having jurisdiction in bankruptcy or insolvency in a reciprocating country; "relative by consanguinity or affinity" means a husband, wife, parent, child, grandparent, grandchild, brother, sister, uncle, aunt, nephew, niece, cousin and shall include relationship by adoption and whether legitimate or illegitimate and on the half blood as well as of the whole blood and any person who is married to any of the foregoing; "resolution" means ordinary resolution; "secured creditor" means a person holding a mortgage charge or lien on the property of the debtor, or any part thereof, as a security for a debt due to him from the debtor; "sheriff" includes any officer charged with the execution of a writ or other process; "special resolution" means a resolution decided by a majority in number and three-fourths in value of the creditors present, personally or by proxy, at a meeting of creditors and voting on the resolution; "trustee" means the trustee in bankruptcy of a debtor's estate.

PART II PROCEEDINGS FROM ACT OF BANKRUPTCY TO DISCHARGE Acts of Bankruptcy

3. (1) A debtor commits an act of bankruptcy in each of the following cases: (a) if in Zambia or elsewhere he makes a conveyance or assignment of his property to a trustee or trustees for the benefit of his creditors generally; if in Zambia or elsewhere he makes a fraudulent conveyance, gift, delivery, or transfer of his property, or of any part thereof; if in Zambia or elsewhere he makes any conveyance or transfer of his property, or of any part thereof, or creates any charge thereon, which would under this or any other Act be void as a fraudulent preference if he were adjudged bankrupt; if with intent to defeat or delay his creditors he does any of the following things, namely, departs out of Zambia, or being out of Zambia remains out of Zambia, or departs from his dwelling-house, or otherwise absents himself, or begins to keep house; if execution against him has been levied by seizure of his goods under process in an action in any court, or in any civil proceedings in the court, and the goods have been either sold or held by the sheriff for twenty-one days:

Acts of bankruptcy

(b)

(c)

(d)

(e)

Provided that, where an interpleader summons has been taken out in regard to the goods seized, the time elapsing between the date at which such summons is taken out and the date at which the proceedings on such summons are finally disposed of, settled, or abandoned, shall not be taken into account in calculating such period of twenty-one days; (f) if he files in the court a declaration of his inability to pay his debts or presents a bankruptcy petition against himself; if a creditor has obtained a final judgment or final order against him for any amount, and, execution thereon not having been stayed, has served on him in Zambia, or, by leave of the court, elsewhere, a bankruptcy notice under this Act, and he does not, within seven days after service of the notice, in case the service is effected in Zambia, and in case the service is effected

(g)

elsewhere, then within the time limited in that behalf by the order giving leave to effect the service, either comply with the requirements of the notice or satisfy the court that he has a counterclaim, set-off or cross demand which equals or exceeds the amount of the judgment debt or sum ordered to be paid, and which he could not set up in the action in which the judgment was obtained, or the proceedings in which the order was obtained. For the purposes of this paragraph and of section four, any person who is, for the time being, entitled to enforce a final judgment or final order, shall be deemed to be a creditor who has obtained a final judgment or final order; (h) if the debtor gives notice to any of his creditors that he has suspended, or that he is about to suspend, payment of his debts. (2) In this Act, "a debtor", unless the context otherwise requires, includes any person, whether a Zambian citizen or not, who at the time when any act of bankruptcy was committed by him(a) (b) was personally present in Zambia; or ordinarily resided or had a place of residence in Zambia; or

(c) was carrying on business in Zambia, personally, or by means of an agent or manager; or (d) was a member of a firm or partnership which carried on business in Zambia; and, for the purposes of Part IX, includes a person against whom bankruptcy proceedings have been instituted in a reciprocating country and who has property in Zambia. 4. A bankruptcy notice under this Act shall be in the prescribed form, Bankruptcy notices and shall require the debtor to pay the judgment debt or sum ordered to be paid in accordance with the terms of the judgment or order, or to secure or compound for it to the satisfaction of the creditor or the court, and shall state the consequences of non-compliance with the notice, and shall be served in the prescribed manner:

Provided that a bankruptcy notice(i) may specify an agent to act on behalf of the creditor in respect of any payment or other thing required by the notice to be made to, or done to the satisfaction of, the creditor; (ii) shall not be invalidated by reason only that the sum specified in the notice as the amount due exceeds the amount actually due, unless the debtor within the time allowed for payment gives notice to the creditor that he disputes the validity of the notice on the ground of such misstatement; but, if the debtor does not give such notice, he shall be deemed to have complied with the bankruptcy notice if within the time allowed he takes such steps as would have constituted a compliance with the notice had the actual amount due been correctly specified therein. Receiving Order 5. Subject to the conditions hereinafter specified, if a debtor commits Jurisdiction to make receiving an act of bankruptcy the court may, on a bankruptcy petition being presented either by a creditor or by the debtor, make an order, in this Act order called a receiving order, for the protection of the estate. 6. (1) A creditor shall not be entitled to present a bankruptcy petition against a debtor unlessConditions on which creditor may petition

(a) the debt owing by the debtor to the petitioning creditor, or, if two or more creditors join in the petition, the aggregate amount of debts owing to the several petitioning creditors, amounts to one hundred kwacha; and (b) the debt is a liquidated sum, payable either immediately or at some certain future time; and (c) the act of bankruptcy on which the petition is grounded has occurred within three months before the presentation of the petition; and (d) the debtor is domiciled in Zambia, or within a year before the date of the presentation of the petition has ordinarily resided, or had a dwelling-house or place of business in Zambia, or has carried on

business in Zambia personally or by an agent or manager, or is or within the said period has been a member of a firm or partnership of persons which has carried on business in Zambia by means of a partner or partners, or an agent or manager; nor, where a deed of arrangement has been executed, shall a creditor be entitled to present a bankruptcy petition founded on the execution of the deed, or any other act committed by the debtor in the course or for the purpose of the proceedings preliminary to the execution of the deed, in cases where he is prohibited from so doing by the law for the time being in force relating to deeds of arrangement. (2) If the petitioning creditor is a secured creditor, he must in his petition either state that he is willing to give up his security for the benefit of the creditors in the event of the debtor being adjudged bankrupt, or give an estimate of the value of his security. In the latter case, he may be admitted as a petitioning creditor to the extent of the balance of the debt due to him, after deducting the value so estimated in the same manner as if he were an unsecured creditor. 7. (1) A creditor's petition shall be verified by affidavit of the creditor, Proceedings and order on creditor's or of some person on his behalf having knowledge of the facts and petition served in the prescribed manner. (2) At the hearing the court shall require proof of the debt of the petitioning creditor, of the service of the petition, and of the act of bankruptcy, or, if more than one act of bankruptcy is alleged in the petition, of one of the alleged acts of bankruptcy, and if satisfied with the proof, may make a receiving order in pursuance of the petition. (3) If the court is not satisfied with the proof of the petitioning creditor's debt, or of the act of bankruptcy, or of the service of the petition, or is satisfied by the debtor that he is able to pay his debts, or that for other sufficient cause no order ought to be made, the court may dismiss the petition. (4) When the act of bankruptcy relied on is non-compliance with a bankruptcy notice to pay, secure, or compound for a judgment debt, or sum ordered to be paid, the court may, if it thinks fit, stay or dismiss the petition on the ground that an appeal is pending from the judgment or order.

(5) Where the debtor appears on the petition and denies that he is indebted to the petitioner, or that he is indebted to such an amount as would justify the petitioner in presenting a petition against him, the court, on such security (if any) being given as the court may require for payment to the petitioner of any debt which may be established against him in due course of law, and of the costs of establishing the debt, may, instead of dismissing the petition, stay all proceedings on the petition for such time as may be required for trial of the question relating to the debt. (6) Where the proceedings are stayed, the court may, if by reason of the delay caused by the stay of proceedings or for any other cause it thinks just, make a receiving order on the petition of some other creditor, and shall thereupon dismiss, on such terms as it thinks just, the petition in which proceedings have been stayed as aforesaid. (7) A creditor's petition shall not, after presentment, be withdrawn without the leave of the court. 8. (1) A debtor's petition shall allege that the debtor is unable to pay his Debtor's debts, and the presentation thereof shall be deemed an act of bankruptcy petition and without the previous filing by the debtor of any declaration of inability order thereon to pay his debts, and the court shall thereupon make a receiving order: Provided that such order shall be refused unless the debtor has filed with the official receiver his statement of affairs prepared in accordance with the provisions of section sixteen. (2) A debtor's petition shall not, after presentment, be withdrawn without the leave of the court. 9. (1) On the making of a receiving order, the official receiver shall be Effect of thereby constituted receiver of the property of the debtor, and thereafter, receiving order except as directed by this Act, no creditor to whom the debtor is indebted in respect of any debt provable in bankruptcy shall have any remedy against the property or person of the debtor in respect of the debt, or shall commence any action or other legal proceedings, unless with the leave of the court and on such terms as the court may impose. (2) This section shall not affect the power of any secured creditor to

realise or otherwise deal with his security in the same manner as he would have been entitled to realise or deal with it if this section had not been passed. 10. The court may, if it is shown to be necessary for the protection of Power to the estate, at any time after the presentation of a bankruptcy petition, and appoint interim before a receiving order is made, appoint the official receiver to be receiver interim receiver of the property of the debtor, or of any part thereof, and direct him to take immediate possession thereof or of any part thereof. 11. (1) The court may, at any time after the presentation of a bankruptcy petition, stay any action, execution or other legal process against the property or person of the debtor, and any court in which proceedings are pending against a debtor may, on proof that a bankruptcy petition has been presented by or against the debtor, either stay the proceedings or allow them to continue on such terms as it may think just. (2) Where the court makes an order staying any action or proceedings, or staying proceedings generally, the order may be served by sending a copy thereof, under the seal of the court, by post to the address for service of the plaintiff or other party prosecuting such proceeding. 12. (1) The official receiver may, if satisfied that the nature of the Power to debtor's estate or business or the interests of the creditors generally appoint special require the appointment of a special manager of the estate or business, manager other than the official receiver, appoint a manager thereof accordingly to act until a trustee is appointed, or until the official receiver shall give notice to the manager so appointed terminating his appointment, and with such powers (including any of the powers of a receiver) as may be entrusted to him by the official receiver. (2) The special manager shall give such security and account in such manner as the official receiver may direct. (3) The special manager shall receive such remuneration, as the official receiver may determine. 13. Notice of every receiving order, stating the name address and Advertisement Power to stay pending proceedings

description of the debtor, the trading name or names (if any) of the of receiving debtor, the date of the order and the date of the petition, shall be gazetted order and advertised in a local paper in the prescribed manner. 14. (1) If in any case where a receiving order has been made on a bankruptcy petition it appears to the court, upon the application of the official receiver, that the whole indebtedness of the debtor amounts to a sum not exceeding eight hundred kwacha, the court, after such inquiry as it may think fit, may rescind the receiving order and annul the adjudication order, if made, and may make a composition order having the same effect as a composition order made by a subordinate court under the Subordinate Courts Act. (2) If the debtor shall not comply with the terms of a composition order made under this section, the subordinate court administering his estate may, if it thinks fit, annul the composition order but without prejudice to the validity of any payment duly made, or thing done, under or in pursuance of the composition order, and the court having jurisdiction in bankruptcy shall thereupon make a receiving order against the debtor and adjudge him bankrupt. Where a debtor has been adjudged bankrupt under this subsection, any debt provable in other respects, which has been contracted before the adjudication, shall be provable in the bankruptcy. Proceedings Consequent on Order 15. (1) As soon as may be after the making of a receiving order against First and other a debtor, a general meeting of his creditors (in this Act referred to as the meetings of first meeting of creditors) shall be held for the purpose of considering creditors whether a proposal for a composition or scheme of arrangement shall be accepted, and generally as to the mode of dealing with the debtor's property. (2) With respect to the summoning of and proceedings at the first and other meetings of creditors, the rules in the First Schedule shall be observed. 16. (1) The debtor shall make out and submit to the official receiver a Debtor's statement of and in relation to his affairs in the prescribed form, verified statement of by affidavit, and showing the particulars of the debtor's assets, debts and affairs liabilities, the names, residences and occupations of his creditors, the Power to rescind receiving order in certain cases Cap. 28

securities held by them respectively, the dates when the securities were respectively given, and such further or other information as may be prescribed or as the official receiver may require. (2) The statement shall be so submitted(a) before, but not more than fourteen days before, the date of the presentation of the debtor's petition, and upon such submission, the official receiver shall certify to the court under his hand that such statement has been duly submitted to him; (b) within fourteen days of the date of the receiving order made on the petition of a creditor, but the official receiver may, for special reasons, extend the time. (3) In the case of a creditor's petition, if the debtor fails without reasonable cause to comply with the requirements of this section, he shall be guilty of a misdemeanour and the debtor shall, in addition to any other punishment to which he may be liable, be guilty of contempt of court and be punishable accordingly. (4) Any person stating himself in writing to be a creditor of the bankrupt may, personally or by agent, inspect the statement at all reasonable times, and take any copy thereof or extract therefrom, but any person untruthfully so stating himself to be a creditor shall be guilty of contempt of court, and shall be punishable accordingly on the application of the trustee or official receiver. Public Examination of Debtor 17. (1) Where the court makes a receiving order, it shall, save as in this Public Act provided, hold a public sitting, on a day to be appointed by the court, examination of for the examination of the debtor, and the debtor shall attend thereat, and debtor shall be examined as to his conduct, dealings and property. (2) The examination shall be held as soon as conveniently may be after the expiration of the time for the submission of the debtor's statement of affairs. (3) The court may adjourn the examination for such periods of time or

generally, as the court shall think most convenient. (4) The court may adjourn the public examination sine die and may make such further order as it thinks fit, where(a) it is of opinion that the debtor is not making a full and true disclosure of his affairs; (b) the debtor, without showing any sufficient reason, has failed to attend the public examination or any adjournment thereof, or to comply with any order of the court in relation to his accounts, conduct, dealings or property. (5) Any creditor who has tendered a proof, or his representative authorised in writing, may question the debtor concerning his affairs and the causes of his failure. (6) The official receiver shall take part in the examination of the debtor, and for the purpose thereof may employ a legal practitioner if he so desires. (7) If a trustee is appointed before the conclusion of the examination, he may take part therein. (8) The court may put such questions to the debtor as it may think expedient. (9) The legal practitioner of the debtor may attend the examination, but shall not question the debtor, or address the court. (10) The debtor shall be examined upon oath, and it shall be his duty to answer all such questions as the court may put or allow to be put to him. Such notes of the examination as the court thinks proper shall be taken down in writing, and shall be read over either to or by the debtor and signed by him, and may thereafter, save as in this Act provided, be used in evidence against him; and they shall also be open to the inspection of any creditor at all reasonable times.

(11) If a debtor, on being examined before the court, refuses to answer or does not answer to the satisfaction of the court any questions which it may allow to be put, such debtor shall be guilty of contempt of court, and be punishable accordingly. (12) When the court is of the opinion that the affairs of the debtor have been sufficiently investigated, it shall by order declare that his examination is concluded; but notwithstanding such order the court, on the application of the official receiver, may order a further examination of the debtor and such further examination shall be deemed to be the resumption of an adjourned examination. (13) Where the debtor is a mentally disordered person or suffers from any such mental or physical affliction or disability as in the opinion of the court makes him unfit to attend his public examination, the court may make an order dispensing with such examination, or directing that the debtor be examined on such terms, in such manner, and at such place as the court thinks expedient. Composition or Scheme of Arrangement 18. (1) Where a debtor either before or after he has been adjudged Compositions bankrupt intends to make a proposal for a composition in satisfaction of and schemes of his debts, or a proposal for a scheme of arrangement of his affairs, he arrangement shall lodge with the official receiver a proposal in writing, signed by him, embodying the terms of the composition or scheme which he is desirous of submitting for the consideration of his creditors, and setting out particulars of any sureties or securities proposed. (2) If, in the opinion of the official receiver, the debtor's proposal is not calculated to benefit the general body of creditors or has been lodged with the object of preventing a full investigation of the debtor's conduct or affairs or is otherwise prejudicial to the administration of the debtor's estate in accordance with the provisions of this Act, the official receiver may reject the debtor's proposal, but in every other case the official receiver shall hold a meeting of creditors, and send to each creditor, before the meeting, a copy of the debtor's proposal with a report thereon; and if, at that meeting, a majority in number and three-fourths in value of all the creditors who have proved resolve to accept the proposal, it shall be deemed to be duly accepted by the creditors, and, when approved by the court, shall be binding on all the creditors.

(3) The debtor may at the meeting amend the terms of his proposal, if the amendment is, in the opinion of the official receiver, calculated to benefit the general body of creditors. (4) Any creditor who has proved his debt may assent to or dissent from the proposal by a letter, in the prescribed form, addressed to the official receiver so as to be received by him not later than the day preceding the meeting, and any such assent or dissent shall have effect as if the creditor had been present and had voted at the meeting. (5) The debtor or the official receiver may, after the proposal has been accepted by the creditors, apply to the court to approve it, and notice of the time appointed for hearing the application shall be given to each creditor who has proved. (6) Every debtor whose proposal has been accepted by the creditors shall be examined as provided by section seventeen, and the application to the court to approve the proposal shall not be heard until after the conclusion of such examination. (7) Any creditor who has proved may be heard by the court in opposition to the application, notwithstanding that he may at the meeting of creditors have voted for the acceptance of the proposal. (8) For the purpose of approving a composition or scheme by joint debtors, the court may, if it thinks fit, and on the report of the official receiver that it is expedient so to do, dispense with the public examination of one of the joint debtors if he is unavoidably prevented from attending the examination by illness or is absent from Zambia. (9) The court shall, before approving the proposal, hear a report of the official receiver as to the terms thereof and as to the conduct of the debtor, and any objections which may be made by or on behalf of any creditor. (10) If the court is of opinion that the terms of the proposal are not reasonable, or are not calculated to benefit the general body of creditors, the court shall refuse to approve the proposal.

(11) If any facts are proved on proof of which the court would be required either to suspend or attach conditions to a debtor's discharge from adjudication in bankruptcy, the court shall refuse to approve the proposal, unless it provides reasonable security for the payment of not less than twenty-five ngwee in the kwacha on all the unsecured debts provable against the debtor's estate. (12) In any other case the court may either approve or refuse to approve the proposal. (13) If the court approves the proposal, the approval may be testified by the seal of the court being attached to the instrument containing the terms of the proposed composition or scheme, or by terms being embodied in an order of the court. (14) A composition or scheme accepted and approved in pursuance of this section shall be binding on all the creditors so far as relates to any debts due to them from the debtor and provable in bankruptcy, but shall not release the debtor from any liability under a judgment against him in an action for seduction, or under an affiliation order, or under a judgment against him as a co-respondent in a matrimonial cause, except to such an extent and under such conditions as the court expressly orders in respect of such liability. (15) If the court approves the composition or scheme, and if the debtor has been adjudged bankrupt, it may make an order annulling the bankruptcy and vesting the property of the bankrupt in him or in such other person as the court may appoint on such terms and subject to such conditions, if any, as the court may declare. (16) A certificate of the official receiver that a composition or scheme has been duly accepted and approved shall, in the absence of fraud, be conclusive as to its validity. (17) The provisions of a composition on scheme under this section may be enforced by the court on application by any person interested, and any disobedience of an order of the court made on the application shall be deemed a contempt of court.

(18) If default is made in payment of any instalment due in pursuance of the composition or scheme, or if it appears to the court that the composition or scheme cannot proceed without injustice or undue delay to the creditors or to the debtor, or that the approval of the court was obtained by fraud, the court may, if it thinks fit, on the application of the official receiver or the trustee or by any creditor, adjudge the debtor bankrupt, and annul the composition or scheme, but without prejudice to the validity of any sale, disposition or payment duly made, or thing duly done, under or in pursuance of the composition or scheme. Where a debtor is adjudged bankrupt under this subsection, any debt provable in other respects which has been contracted before the adjudication, shall be provable in the bankruptcy. (19) If under or in pursuance of a composition or scheme a trustee is appointed to administer the debtor's property or manage his business, or to distribute the composition, section twenty-seven and Part V shall apply as if the trustee were a trustee in a bankruptcy, and as if the terms "bankruptcy", "bankrupt", and "order of adjudication" included respectively a composition or scheme of arrangement, a compounding or arranging debtor, and an order approving the composition or scheme. (20) Part III shall, so far as the nature of the case and the terms of the composition or scheme admit, apply thereto, the same interpretation being given to the words "trustee", "bankruptcy", "bankrupt", and "order of adjudication", as in subsection (19). (21) No composition or scheme shall be approved by the court which does not provide for the payment in priority to other debts of all debts directed to be so paid in the distribution of the property of a bankrupt. (22) The acceptance by a creditor of a composition or scheme shall not release any person who under this Act would not be released by an order of discharge from adjudication in bankruptcy. 19. Notwithstanding the acceptance and approval of a composition or Effect of scheme, the composition or scheme shall not be binding on any creditor composition or so far as regards a debt or liability from which, under the provisions of scheme this Act, the debtor would not be released by an order of discharge in bankruptcy, unless the creditor assents to the composition or scheme.

Adjudication of Bankruptcy 20. (1) At the time of making a receiving order, or at any time thereafter, the court may, on the application of the debtor himself adjudge him a bankrupt. (2) When a receiving order has been made and the official receiver has satisfied the court that the debtor has absconded or is about to abscond, the court may forthwith adjudge the debtor bankrupt. (3) In every other case when a receiving order has been made, the court shall make an order adjudging the debtor bankrupt at the expiration of the time prescribed for appealing against the receiving order, if the same has not been rescinded: Provided that the debtor may, prior to the expiration of such time, apply to the court, on the ground that he possesses assets sufficient to pay his debts in full, that an order adjudging him bankrupt be not made forthwith, and, if upon such application no order adjudging the debtor bankrupt is then made, the official receiver may apply at any time thereafter that the debtor be adjudged bankrupt, and the court may thereupon, after hearing a report of the official receiver as to the assets and liabilities of the debtor and as to his conduct, adjudge the debtor bankrupt. (4) On the making of an order adjudging the debtor bankrupt, the property of the debtor shall become divisible among his creditors and shall vest in a trustee as by this Act provided. (5) Notice of every order adjudging a debtor bankrupt, stating the name, address and description of the bankrupt, the trading name or names (if any) of the bankrupt and the date of the adjudication, shall be gazetted and advertised in a local paper in the prescribed manner, and the date of the order shall, for the purposes of this Act, be the date of the adjudication. 21. (1) When a debtor has been adjudged bankrupt, creditors may by Appointment of ordinary resolution appoint some fit person, whether a creditor or not, to trustee fill the office of trustee of the property of the bankrupt; or they may Adjudication of bankruptcy

resolve to leave his appointment to the committee of inspection hereinafter mentioned. A person shall be deemed not fit to act as trustee of the property of a bankrupt where he has been previously removed from the office of trustee of a bankrupt's property for misconduct or neglect of duty. (2) The person so appointed shall give security in manner prescribed to the satisfaction of the official receiver, and the official receiver, if satisfied with the security, shall certify that his appointment has been duly made, unless he objects to the appointment on the ground that it has not been made in good faith by a majority in value of the creditors voting, or that the person appointed is not fit to act as trustee, or that his connection with or relation to the bankrupt or his estate or any particular creditor makes it difficult for him to act with impartiality in the interests of the creditors generally: Provided that, where the official receiver makes any such objection he shall, if so requested by a majority in value of the creditors, notify the objection to the court, and thereupon the court may decide on its validity. (3) The appointment of a trustee shall take effect as from the date of the certificate. (4) The official receiver shall be the trustee for the purposes of this Act(a) (b) until a trustee is appointed pursuant to subsection (1); during any vacancy in the office of trustee.

22. (1) The creditors qualified to vote may, at their first or any Committee of subsequent meeting by resolution, appoint a committee of inspection for inspection the purpose of superintending the administration of the bankrupt's property by the trustee: Provided that, if the official receiver is the trustee for the purposes of this Act, the appointment of a committee of inspection shall only be made if the official receiver shall have previously consented thereto.

(2) The committee of inspection shall consist of not more than five nor less than three persons, possessing one or other of the following qualifications: (a) that of being a creditor or holder of a general proxy or general power of attorney from a creditor: Provided that no creditor and no holder of a general proxy or general power of attorney from a creditor shall be qualified to act as a member of the committee of inspection until the creditor has proved his debt and the proof has been admitted; or (b) that of being a person to whom a creditor intends to give a general proxy or general power of attorney: Provided that no such person shall be qualified to act as a member of the committee of inspection until he holds such a proxy or power of attorney, and until the creditor has proved his debt and the proof has been admitted. (3) The committee of inspection shall meet at such times as they shall from time to time appoint and, failing such appointment, at least once a month; and the trustee or any member of the committee may also call a meeting of the committee as and when he thinks necessary. (4) The committee may act by a majority of their members present at the meeting, but shall not act unless a majority of the committee are present at the meeting. (5) Any member of the committee may resign his office by notice in writing signed by him, and delivered to the trustee. (6) If a member of the committee becomes bankrupt, or compounds or arranges with his creditors, or is absent from five consecutive meetings of the committee, his office shall thereupon become vacant. (7) Any member of the committee may be removed by an ordinary resolution at any meeting of creditors of which seven days' notice has been given stating the object of the meeting.

(8) On a vacancy occurring in the office of a member of the committee, the trustee shall forthwith summon a meeting of creditors for the purpose of filling the vacancy, and the meeting may by resolution appoint another creditor or other person eligible as above to fill the vacancy. (9) The continuing members of the committee, provided there be not less than two such continuing members, may act notwithstanding any vacancy in their body and, where the number of members of the committee of inspection is for the time being less than five, the creditors may increase that number so that it does not exceed five. (10) If there be no committee of inspection, any act or thing or any direction or permission by this Act authorised or required to be done or given by the committee may be done or given by the official receiver on the application of the trustee. Control over Person and Property of Debtor 23. (1) Every debtor against whom a receiving order is made shall attend the first meeting of his creditors, and shall submit to such examination and give such information as the meeting may require: Duties of debtor as to discovery and realisation of property

Provided that the proceedings at any meeting shall not be invalidated by reason only of the absence of the debtor therefrom. (2) He shall give such inventory of his property, such list of his creditors and debtors and of the debts due to and from them respectively, submit to such examination in respect of his property or his creditors, attend such other meetings of his creditors, wait at such times on the official receiver, special manager or trustee, execute such powers of attorney, conveyances, deeds and instruments, and generally do all such acts and things in relation to his property and the distribution of the proceeds amongst his creditors, as may be reasonably required by the official receiver, special manager or trustee, or as may be prescribed by general rules made under this Act, or be directed by the court by any special order or orders made in reference to any particular case, or made on the occasion of any special application by the official receiver, special

manager or trustee or any creditor or person interested. (3) A bankrupt shall, to the utmost of his power, aid in the realisation of his property and the distribution of the proceeds among his creditors. (4) If a debtor wilfully fails to perform the duties imposed on him by this section, or to deliver up possession of any part of his property, which is divisible among his creditors under this Act, and which is for the time being in his possession or under his control, to the official receiver or to the trustee or to any person authorised by the official receiver or trustee or by the court to take possession of it, he shall, in addition to any other punishment to which he may be subject, be guilty of contempt of court, and may be punished accordingly. 24. (1) Every debtor against whom an order of adjudication is made in Zambia shall, so long as such order remains in force, keep the official receiver or the trustee, as the case may be, informed of his residential and postal addresses, and shall submit every six months from the date of the said order a return, verified by affidavit, giving full particulars as to his employment, salary, earnings and other income, other moneys received and all other information relative to his affairs during the preceding period of six months. (2) Any person who fails to comply with the provisions of this section shall be guilty of a misdemeanour. 25. (1) The court may, by warrant addressed to any police officer or Arrest of debtor prescribed officer of the court, cause a debtor to be arrested, and any under certain books, papers, money and goods in his possession to be seized, and him circumstances and them to be safely kept as prescribed until such time as the court may order under the following circumstances: (a) if, after a bankruptcy notice has been issued under this Act, or after presentation of a bankruptcy petition by or against him, it appears to the court that there is probable reason for believing that he has absconded, or is about to abscond, with a view of avoiding payment of the debt in respect of which the bankruptcy notice was issued or of avoiding service of a bankruptcy petition, or of avoiding appearance to any such petition, or of avoiding examination in respect of his affairs, or of otherwise avoiding, delaying or embarrassing proceedings in bankruptcy against him; Address and certain particulars to be furnished

(b) if, after presentation of a bankruptcy petition by or against him, it appears to the court that there is probable cause for believing that he is about to remove his goods with a view of preventing or delaying possession being taken of them by the official receiver or trustee, or that there is probable ground for believing that he has concealed or is about to conceal or destroy any of his goods, or any books, documents or writings which might be of use to his creditors in the course of his bankruptcy; (c) if, after service of a bankruptcy petition on him, or after a receiving order is made against him, he removes any goods in his possession above the value of ten kwacha without the leave of the official receiver or trustee; (d) if, without good cause shown, he fails to attend any examination ordered by the court: Provided that no arrest upon a bankruptcy notice shall be valid and protected, unless the debtor before or at the time of his arrest is served with such bankruptcy notice. (2) No payment or composition made or security given after arrest made under this section shall be exempt from the provisions of this Act relating to fradulent preferences. 26. Where a receiving order is made against a debtor, the court, on the Re-direction of debtor's letters application of the official receiver or trustee, may from time to time order that for such time, not exceeding six months, as the court thinks fit, letters, telegrams, cablegrams and other postal packets, addressed to the debtor at any place or places mentioned in the order for re-direction, shall be re-directed, sent or delivered by the Postmaster-General, or the officers acting under him, or any other person in charge of the transmission and receipt of letters, telegrams, cablegrams and other postal packets, to the official receiver, or the trustee, or otherwise as the court directs, and the same shall be done accordingly. 27. (1) The court may, on the application of the official receiver or trustee or creditor or any other person interested, at any time after a receiving order has been made against a debtor, summon before it the debtor or his wife, or any person known or suspected to have in his Inquiry as to debtor's conduct, dealings and

possession any of the estate or effects belonging to the debtor, or supposed to be indebted to the debtor, or any person whom the court may deem capable of giving information respecting the debtor, his dealings or property, and the court may require any such person to produce any documents in his custody or power relating to the debtor, his dealings or property. (2) If any person so summoned, after having been tendered a reasonable sum, refuses to come before the court at the time appointed, or refuses to produce any such documents, having no lawful impediment made known to the court at the time of its sitting and allowed by it, the court may, by warrant, cause him to be apprehended and brought up for examination. (3) The court may examine on oath, either by word of mouth or by written interrogatories, any person so brought before it concerning the debtor, his dealings or property, and the official receiver or the trustee or any creditor or any such other person interested may take part in the examination and may be represented by a legal practitioner for that purpose. (4) If the person under examination is not the debtor, the debtor may take part in the examination and may be represented by a legal practitioner for that purpose. (5) If any person on examination before the court admits that he is indebted to the debtor, the court may, on the application of the official receiver or trustee, order him to pay to the official receiver or trustee, at such time and in such manner as to the court seems expedient, the amount admitted, or any part thereof, either in full discharge of the whole amount in question or not, as the court thinks fit, with or without costs of the examination. (6) If any person on examination before the court admits that he has in his possession any property belonging to the debtor, the court may, on the application of the official receiver or trustee, order him to deliver to the official receiver or trustee such property or any part thereof, at such time, and in such manner, and on such terms, as to the court may seem just.

property

(7) The court may, if it thinks fit, order that any person who if in Zambia would be liable to be brought before it under this section shall be examined in any place out of Zambia. 28. (1) A bankrupt may at any time after being adjudged bankrupt, Discharge of apply to the court for an order of discharge, and the court shall appoint a bankrupt day for hearing the application, but the application shall not be heard until the public examination of the bankrupt is concluded. The application shall, except when the court in accordance with rules under this Act otherwise directs, be heard in open court. (2) On the hearing of the application the court shall take into consideration a report of the official receiver as to the bankrupt's conduct and affairs (including a report as to the bankrupt's conduct during the proceedings under his bankruptcy), and may either grant or refuse an absolute order of discharge, or suspend the operation of the order for a specified time, or grant an order of discharge subject to any conditions with respect to any earnings or income which may afterwards become due to the bankrupt, or with respect to his after-acquired property: Provided that(i) where the bankrupt has committed any misdemeanour under this Act, or under any enactment referred to in the Third Schedule, or any misdemeanour connected with his bankruptcy, or any felony connected with his bankruptcy, whether in Zambia or in any reciprocating country, or where in any case any of the facts hereinafter mentioned are proved, the court shall either(a) (b) or refuse the discharge; or suspend the discharge for such period as the court thinks proper;

(c) suspend the discharge until the debtor has paid to his creditors such dividend as the court may, in its absolute discretion, think fit; or (d) require the bankrupt as a condition of his discharge to consent to judgment being entered against him by the official receiver or trustee for any balance or part of any balance of the debts provable under the bankruptcy which is not satisfied at the date of the discharge, such balance or part of any balance of the debts to be paid out of the future earnings or after-acquired property of the bankrupt in such manner and

subject to such conditions as the court may direct; but execution shall not be issued on the judgment without leave of the court, which leave may be given on proof that the bankrupt has since his discharge acquired property or income available towards payment of his debts; (ii) if at any time after the expiration of two years from the date of any order made under this section the bankrupt satisfies the court that there is no reasonable probability of his being in a position to comply with the terms of such order, the court may modify the terms of the order, or of any substituted order, in such manner and upon such conditions as it may think fit. (3) The facts hereinbefore referred to are(a) that the bankrupt's assets were not at the date of the receiving order of a value equal to fifty ngwee in the kwacha on the amount of his unsecured liabilities, unless he satisfies the court that the fact that the assets were not of a value equal to fifty ngwee in the kwacha on the amount of his unsecured liabilities had arisen from circumstances for which he could not justly be held responsible; (b) that the bankrupt has omitted to keep such books of account as are usual and proper in the business carried on by him and as sufficiently disclose his business transactions and financial position within the three years immediately preceding his bankruptcy; (c) that the bankrupt has continued to trade after knowing himself to be insolvent; (d) that the bankrupt has contracted any debt provable in the bankruptcy without having at the time of contracting it any reasonable or probable ground of expectation (proof whereof shall lie on him) of being able to pay it; (e) that the bankrupt has failed to account satisfactorily for any loss of assets or for any deficiency of assets to meet his liabilities; (f) that the bankrupt has brought on, or contributed to, his bankruptcy by rash and hazardous speculations, or by unjustifiable extravagance of living, or by gambling, or by culpable neglect of his business affairs;

(g) that the bankrupt has put any of his creditors to unnecessary expense by a frivolous or vexatious defence to any action properly brought against him; (h) that the bankrupt has, within three months preceding the date of the receiving order, brought on or contributed to his bankruptcy by incurring unjustifiable expense in bringing any frivolous or vexatious action; (i) that the bankrupt has, within three months preceding the date of the receiving order, when unable to pay his debts as they become due, given an undue preference to any of his creditors; (j) that the bankrupt has, within three months preceding the date of the receiving order, incurred liabilities with a view of making his assets equal to fifty ngwee in the kwacha on the amount of his unsecured liabilities; (k) that the bankrupt has, on any previous occasion, been adjudged bankrupt, or made a composition or arrangement with his creditors; (l) that the bankrupt has been guilty of any fraud or fraudulent breach of trust. (4) With a view of removing any disqualification on account of bankruptcy which is removed if the bankrupt obtains from the court his discharge with a certificate to the effect that the bankruptcy was caused by misfortune without any misconduct on his part, the court may, if it thinks fit, grant such a certificate, but a refusal to grant such a certificate shall be subject to appeal. (5) For the purposes of this section, a bankrupt's assets shall be deemed of a value equal to fifty ngwee in the kwacha on the amount of his unsecured liabilities when the court is satisfied that the property of the bankrupt has realised, or is likely to realise, or with due care in realisation might have realised, an amount equal to fifty ngwee in the kwacha on his unsecured liabilities, and a report by the official receiver or trustee shall be prima facie evidence of the amount of such liabilities. (6) For the purposes of this section, the report of the official receiver shall be prima facie evidence of the statements therein contained.

(7) Notice of the appointment by the court of the day for hearing the application for discharge shall be published in the prescribed manner, and sent fourteen days at least before the day so appointed to each creditor who has proved, and the court may hear the official receiver and the trustee, and may also hear any creditor who has proved or his representative authorised in writing. At the hearing the court may put such questions to the debtor and receive such evidence as it may think fit. (8) The powers of suspending and of attaching conditions to a bankrupt's discharge may be exercised concurrently. (9) A discharged bankrupt shall, notwithstanding his discharge, give such assistance as the official receiver or trustee may require in the realisation and distribution of such of his property as is vested in the official receiver or trustee, and, if he fails to do so, he shall be guilty of contempt of court; and the court may also, if it thinks fit, revoke his discharge, but without prejudice to the validity of any sale, disposition or payment duly made or thing duly done subsequent to the discharge but before its revocation. 29. In either of the following cases, that is to say: Fraudulent settlements

(a) in the case of a settlement made before and in consideration of marriage where the settlor is not at the time of making the settlement able to pay all his debts without the aid of the property comprised in the settlement; or (b) in the case of any covenant or contract made in consideration of marriage for the future settlement on or for the settlor's wife or children of any money or property wherein he had not at the date of his marriage any estate or interest; if the settlor is adjudged bankrupt or compounds or arranges with his creditors, and it appears to the court that such settlement, covenant, or contract was made in order to defeat or delay creditors, or was unjustifiable having regard to the state of the settlor's affairs at the time when it was made, the court may refuse or suspend an order of discharge, or grant an order subject to conditions, or refuse to approve a composition or arrangement, as the case may be, in like manner as in cases where the debtor has been guilty of fraud.

30. (1) An order of discharge shall not release the bankrupt(a) from any debt on a recognizance nor from any debt with which the bankrupt may be chargeable at the suit of the State or of any person for any offence against any law relating to any branch of the public revenue, or at the suit of the sheriff or other public officer on a bail bond entered into for the appearance of any person prosecuted for any such offence; and he shall not be discharged from such excepted debts unless the Permanent Secretary, Ministry of Finance, certifies in writing his consent to the bankrupt's being discharged therefrom; or (b) from any debt or liability incurred by means of any fraud or fraudulent breach of trust to which he was a party, nor from any debt or liability whereof he has obtained forbearance by any fraud to which he was a party; or (c) from any liability under a judgment against him in an action for seduction, or under an affiliation order, or under a judgment against him as a co-respondent in a matrimonial cause, except to such an extent and under such conditions as the court expressly orders in respect of such liability. (2) An order of discharge shall release the bankrupt from all other debts provable in bankruptcy. (3) An order of discharge shall be conclusive evidence of the bankruptcy, and of the validity of the proceedings therein, and in any proceedings that may be instituted against a bankrupt who has obtained an order of discharge in respect of any debt from which he is released by the order, the bankrupt may plead that the cause of action occurred before his discharge. (4) An order of discharge shall not release any person who at the date of the receiving order was a partner or co-trustee with the bankrupt, or was jointly bound or had made any joint contract with him, or any person who was surety or in the nature of a surety for him. 31. (1) Where in the opinion of the court a debtor ought not to have been adjudged bankrupt, or where it is proved to the satisfaction of the court that the debts of the bankrupt are paid in full, the court may, on the application of any person interested, by order annul the adjudication.

Effect of order of discharge

Power for court to annul adjudication in certain cases

(2) Where an adjudication is annulled under this section, all sales and dispositions of property and payments duly made, and all acts theretofore done, by the official receiver, trustee, or other person acting under their authority, or by the court, shall be valid, but the property of the debtor who was adjudged bankrupt shall vest in such person as the court may appoint, or in default of any such appointment, revert to the debtor for all his estate or interest therein on such terms and subject to such conditions, if any, as the court may declare by order. (3) Notice of the order annulling an adjudication shall be forthwith gazetted. (4) For the purposes of this section, any debt disputed by a debtor shall be considered as paid in full if the debtor enters into a bond, in such sum and with such sureties as the court approves, to pay the amount to be recovered in any proceeding for the recovery of or concerning the debt, with costs, and any debt due to a creditor who cannot be found or cannot be identified shall be considered as paid in full if paid into court. 32. (1) A bankrupt shall notBankrupt not to act as director or manager of company or to manage business with relative

(a) act as director of, or directly or indirectly take part in or be concerned in the management of, any company; or (b) manage, or directly or indirectly take part in or be concerned in the management of, any trade or business with any person who is a relative by consanguinity or affinity or in any trade or business in which any such person has an interest; unless he has first made application to the court for permission so to do, and obtained such permission. (2) On the hearing of the application, the court shall take into consideration a report of the official receiver as to the bankrupt's conduct and affairs, and may refuse such permission or grant the same

either unconditionally or subject to such conditions or limitations as the court in its absolute discretion may think fit. (3) If a bankrupt in respect of whom permission as aforesaid has been granted fails to comply with any condition or limitation imposed by the court under subsection (2), the official receiver shall report the matter to the court, and the court having considered such report shall make such order thereupon, including the revocation of its original permission, as to the court may seem just. (4) Any person to whom subsection (1) applies who acts as a director of a company or who manages, or takes part in or is concerned in the management of, any company or trade or business as aforesaid without obtaining the permission of the court, or after revocation of such permission, shall be guilty of a misdemeanour.

(5) This section shall apply to a bankrupt adjudicated such prior to the commencement of this Act, provided that a prosecution shall not be instituted against any such person under this section if he applies for and has been granted such permission as aforesaid before the expiration of six months from the commencement of this Act or if he ceases to act as such director or to manage, or take part in or be concerned in the management of, a company or such trade or business as aforesaid if such permission shall be refused.

PART III ADMINISTRATION OF PROPERTY Proof of Debts 33. (1) Demands in the nature of unliquidated damages arising otherwise than by reason of a contract, promise or breach of trust shall not be provable in bankruptcy. (2) A person having notice of any act of bankruptcy available against the debtor shall not prove under the order for any debt or liability
Description of debts provable in bankruptcy

contracted by the debtor subsequently to the date of his so having notice. (3) Save as aforesaid, all debts and liabilities, present or future, certain or contingent, to which the debtor is subject at the date of the receiving order, or to which he may become subject before his discharge by reason of any obligation incurred before the date of the receiving order, shall be deemed to be debts provable in bankruptcy. (4) An estimate shall be made by the trustee of the value of any debt or liability provable as aforesaid, which by reason of its being subject to any contingency or contingencies, or for any other reason, does not bear a certain value. (5) Any person aggrieved by any estimate made by the trustee as aforesaid may appeal to the court. (6) If, in the opinion of the court, the value of the debt or liability is incapable of being fairly estimated, the court may make an order to that effect, and thereupon the debt or liability shall, for the purpose of this Act, be deemed to be a debt not provable in bankruptcy. (7) If, in the opinion of the court, the value of the debt or liability is capable of being fairly estimated, the court may assess the value, or may give all necessary directions for this purpose, and the amount of the value when assessed shall be deemed to be a debt provable in bankruptcy. (8) "Liability" shall, for the purposes of this Act, include(a) any compensation for work or labour done;

(b) any obligation or possibility of an obligation to pay money or money's worth on the breach of any express or implied covenant, contract, agreement or undertaking, whether the breach does or does not occur, or is not likely to occur or be capable of occurring, before the discharge of the debtor; (c) generally, any express or implied engagement, agreement, or undertaking, to pay, or capable of resulting in the payment of, money or

money's worth; whether the payment is, as respects amount, fixed or unliquidated; as respects time, present or future, certain or dependent on any one contingency or on two or more contingencies; as to the mode of valuation, capable of being ascertained by fixed rules or as a matter of opinion.
Mutual credit and 34. Where there have been mutual credits, mutual debts or other mutual dealings, between a debtor against whom a receiving order shall set-off be made under this Act and any other person proving or claiming to prove a debt under the receiving order, an account shall be taken of what is due from the one party to the other in respect of such mutual dealings, and the sum due from the one party shall be set off against any sum due from the other party, and the balance of the account, and no more, shall be claimed or paid on either side respectively; but a person shall not be entitled under this section to claim the benefit of any set-off against the property of a debtor in any case where he had, at the time of giving credit to the debtor, notice of an act of bankruptcy committed by the debtor and available against him.

35. With respect to the mode of proving debts, the right of proof by secured and other creditors, the admission and rejection of proofs, and the other matters referred to in the Second Schedule, the rules in that Schedule shall be observed.

Rules as to proof of debts

36. Subject to the provisions of this Act and of any other law, all debts Priority of debts proved in the bankruptcy shall be paid pari passu. 37. (1) Where at the time of the presentation of the bankruptcy petition Preferential claim in case of any person is apprenticed or is an articled clerk to the bankrupt, the adjudication of bankruptcy shall, if either the bankrupt or apprentice or apprenticeship clerk gives notice in writing to the official receiver or trustee to that effect, be a complete discharge of the indenture of apprenticeship or articles of agreement; and, if any money has been paid by or on behalf of the apprentice or clerk to the bankrupt as a fee, the official receiver or trustee may, on the application of the apprentice or clerk, or of some person on his behalf, pay such sum as the official receiver or trustee, subject to an appeal to the court, thinks reasonable, out of the bankrupt's property, to or for the use of the apprentice or clerk, regard being had to the amount paid by him or on his behalf, and to the time during which he served with the bankrupt under the indenture or articles before the commencement of the bankruptcy, and to the other circumstances of the case.

(2) Where it appears expedient to the official receiver or trustee, he may, on the application of any apprentice or articled clerk to the bankrupt, or any person acting on behalf of such apprentice or articled clerk, instead of acting under the preceding provisions of this section, transfer the indenture of apprenticeship or articles of agreement to some other person. 38. (1) The landlord or other person to whom any rent is due from the bankrupt may at any time, either before or after the commencement of the bankruptcy, distrain upon the goods or effects of the bankrupt for the rent due to him from the bankrupt, with this limitation, that, if such distress for rent be levied after the commencement of the bankruptcy, it shall be available only for six months' rent accrued due prior to the date of the order of adjudication and shall not be available for rent payable in respect of any period subsequent to the date when the distress was levied, but the landlord or other person to whom the rent may be due from the bankrupt may prove under the bankruptcy for the surplus due for which the distress may not have been available. (2) Where any goods of a debtor have been taken in execution, the limit on the amount of rent which the party at whose suit the execution is sued out is liable to pay to the landlord under section 1 of the Landlord and Tenant Act, 1709, of the United Kingdom, shall, unless notice of claim for rent due has been served on the sheriff or bailiff or other officer levying the execution by or on behalf of the landlord before the commencement of the debtor's bankruptcy, be six months' rent, instead of one year's rent, and the rights of the landlord under the said provisions shall not extend to any claim for rent payable in respect of any period subsequent to the date of such notice, unless such notice was served as aforesaid before the commencement of the debtor's bankruptcy. (3) Nothing in subsection (2) shall be construed as imposing any liability on the sheriff, bailiff or other officer levying the execution, or on the person at whose suit the execution was sued out, to account for any sum actually paid to the landlord by him before notice was served on him that a receiving order had been made against the debtor, but the landlord shall be liable to pay to the official receiver or the trustee in the bankruptcy any sum he may have received from such sheriff, bailiff, officer or other person as aforesaid in excess of the amount which he was entitled to be paid, without prejudice, however, to the right of the landlord to prove for the amount of such excess. Landlord's power of distress in case of bankruptcy

39. (1) In the distribution of the property of a bankrupt a dividend shall Postponement not be payable in respect ofof claims (a) a claim by a relative by consanguinity or affinity of such bankrupt for salary or wages, or for any other benefit whatsoever in respect of services rendered to the bankrupt; (b) a claim by a spouse of such bankrupt in respect of any property lent or entrusted by that spouse to the bankrupt for the purpose of any trade or business carried on by him, whether solely or in partnership with any other person or persons; (c) a claim to which section 3 of the Partnership Act, 1890, of the United Kingdom, applies; until all claims of the other creditors of the bankrupt for valuable consideration in money or money's worth have been satisfied. (2) The claims referred to in subsection (1) shall rank equally between themselves and, if the property of the bankrupt shall be insufficient to meet them, they shall abate in equal proportions between themselves. (3) In this section, "spouse" means a person who, at the date when such property was lent or entrusted to the bankrupt, was lawfully married to the bankrupt, and includes a person married by customary law. Property Available for Payment of Debts 40. (1) The bankruptcy of a debtor, whether it takes place on the Relation back debtor's own petition or upon that of a creditor or creditors, shall be of trustee's title deemed to have relation back to, and to commence at, the time of the act of bankruptcy being committed on which a receiving order is made against him, or, if the bankrupt is proved to have committed more acts of bankruptcy than one, to have relation back to, and to commence at, the time of the first of the acts of bankruptcy proved to have been committed by the bankrupt within three months next preceding the date of the presentation of the bankruptcy petition; but no bankruptcy petition, receiving order or adjudication shall be rendered invalid by reason of any act of bankruptcy anterior to the debt of the petitioning creditor.

(2) Where a receiving order is made against a judgment debtor in pursuance of section ninety-nine, the bankruptcy of the debtor shall be deemed to have relation back to, and to commence at, the time of the order, or if the bankrupt is proved to have committed any previous act of bankruptcy, then to have relation back to, and to commence at, the time of the first of the acts of bankruptcy proved to have been committed by the debtor within three months next preceding the date of the order. 41. The property of the bankrupt divisible amongst his creditors, and in Description of bankrupt's this Act referred to as the property of the bankrupt, shall not comprise property the following particulars: divisible (a) property held by the bankrupt on trust for any other person; amongst (b) clothing, furniture and articles of personal or household use, to a creditors value not exceeding two hundred kwacha in the whole; but it shall comprise the following particulars: (i) all such property as may belong to or be vested in the bankrupt at the commencement of the bankruptcy, or may be acquired by or devolve on him before his discharge; and (ii) the capacity to exercise and to take proceedings for exercising all such powers in or over or in respect of property as might have been exercised by the bankrupt for his own benefit at the commencement of his bankruptcy or before his discharge; and (iii) any property lent or entrusted by a relative by consanguinity or affinity to the bankrupt for the purpose of any trade or business carried on by him or otherwise. 42. (1) Where a second or subsequent receiving order is made against a Provisions as to bankrupt, or where an order is made for the administration in bankruptcy second of the estate of a deceased bankrupt, then, for the purposes of any bankruptcy proceedings consequent upon any such order, the trustee in the last preceding bankruptcy shall be deemed to be a creditor in respect of any unsatisfied balance of the debts provable against the property of the bankrupt in that bankruptcy. (2) In the event of a second or subsequent receiving order made against a bankrupt being followed by an order adjudging him bankrupt, or in the event of an order being made for the administration in bankruptcy of the estate of a deceased bankrupt, any property acquired by him since he was last adjudged bankrupt, which at the date when the subsequent petition was presented had not been distributed amongst the creditors in

such last preceding bankruptcy, shall (subject to any disposition thereof made by the official receiver or trustee in that bankruptcy, without knowledge of the presentation of the subsequent petition, and subject to the provisions of section fifty-one), vest in the trustee in the subsequent bankruptcy or administration in bankruptcy, as the case may be. (3) Where the trustee in any bankruptcy receives notice of a subsequent petition in bankruptcy against the bankrupt or after his decease of a petition for the administration of his estate in bankruptcy, the trustee shall hold any property then in his possession which has been acquired by the bankrupt since he was adjudged bankrupt until the subsequent petition has been disposed of, and, if on the subsequent petition an order of adjudication or an order for the administration of the estate in bankruptcy is made, he shall transfer all such property or the proceeds thereof (after deducting his costs and expenses) to the trustee in the subsequent bankruptcy or administration in bankruptcy, as the case may be. Effect of Bankruptcy on Antecedent and Other Transactions 43. (1) Where a creditor has issued execution against the goods or lands of a debtor, or has attached any debt due to him, he shall not be entitled to retain the benefit of the execution or attachment against the trustee in bankruptcy of the debtor, unless he has completed the execution or attachment before the date of the receiving order, and before notice of the presentation of any bankruptcy petition by or against the debtor, or of the commission of any available act of bankruptcy by the debtor. (2) For the purposes of this Act, an execution against goods is completed by seizure and sale; an attachment of a debt is completed by receipt of the debt; and an execution against land is completed by seizure, or, in the case of an equitable interest, by the appointment of a receiver. (3) An execution levied by seizure and sale on the goods of a debtor is not invalid by reason only of its being an act of bankruptcy, and a person who purchases the goods in good faith under a sale by the sheriff shall, in all cases, acquire a good title to them against the trustee in bankruptcy. 44. (1) Where any goods of a debtor are taken in execution, and before Duties of sheriff Restriction of rights of creditor under execution or attachment

the sale thereof, or the completion of the execution by the receipt or as to goods recovery of the full amount of the levy, notice is served on the sheriff taken in that a receiving order has been made against the debtor, the sheriff shall, execution on request, deliver the goods and any money seized or received in part satisfaction of the execution to the official receiver, but the cost of the execution shall be a first charge on the goods or money so delivered, and the official receiver or trustee may sell the goods, or an adequate part thereof, for the purpose of satisfying the charge. (2) Where, under an execution in respect of a judgment for a sum exceeding one hundred kwacha, the goods of a debtor are sold or money is paid in order to avoid sale, the sheriff shall deduct his costs of the execution from the proceeds of sale or the money paid, and retain the balance for fourteen days, and, if within that time notice is served on him of a bankruptcy petition having been presented by or against the debtor, and a receiving order is made against the debtor thereon or on any other petition of which the sheriff has notice, the sheriff shall pay the balance to the official receiver or, as the case may be, to the trustee, who shall be entitled to retain it as against the execution creditor. Avoidance of 45. (1) Any settlement of property, not being a settlement made in certain favour of a purchaser or incumbrancer in good faith and for valuable consideration, or a settlement made on or for the wife or children of the settlements settlor of property which has accrued to the settlor after marriage in right of his wife, shall, if the settlor becomes bankrupt within two years after the date of the settlement, be void against the trustee in the bankruptcy, and shall, if the settlor becomes bankrupt at any subsequent time within ten years after the date of the settlement, be void against the trustee in the bankruptcy, unless the parties claiming under the settlement can prove that the settlor was, at the time of making the settlement, able to pay all his debts without the aid of the property comprised in the settlement, and that the interest of the settlor in such property passed to the trustee of such settlement on the execution thereof. (2) Any covenant or contract made by any person (hereinafter called the settlor) in consideration of his or her marriage, either for the future payment of money for the benefit of the settlor's wife or husband or children, or for the future settlement on or for the settlor's wife or husband or children, of property, wherein the settlor had not at the date of the marriage any estate or interest, whether vested or contingent, in possession or in remainder, shall, if the settlor is adjudged bankrupt and the covenant or contract has not been executed at the date of the commencement of his bankruptcy, be void against the trustee in the

bankruptcy, except so far as it enables the persons entitled under the covenant or contract, to claim for dividend in the settlor's bankruptcy under or in respect of the covenant or contract, but any such claim to dividend shall be postponed until all claims of the other creditors for valuable consideration in money or money's worth have been satisfied. (3) Any payment of money (not being payment of premiums on a policy of life insurance) or any transfer of property made by the settlor in pursuance of such a covenant or contract as aforesaid shall be void against the trustee in the settlor's bankruptcy, unless the persons to whom the payment or transfer was made prove either(a) that the payment or transfer was made more than two years before the date of the commencement of the bankruptcy; or (b) that at the date of the payment or transfer the settlor was able to pay all his debts without the aid of the money so paid or the property so transferred; or (c) that the payment or transfer was made in pursuance of a covenant or contract to pay or transfer money or property expected to come to the settlor from or on the death of a particular person named in the covenant or contract and was made within three months after the money or property came into the possession or under the control of the settlor; but in the event of any such payment or transfer being declared void, the persons to whom it was made shall be entitled to claim for dividend under or in respect of the covenant or contract in like manner as if it had not been executed at the commencement of the bankruptcy. (4) "Settlement" shall, for the purposes of this section, include any conveyance or transfer of property, including money. 46. (1) Where a person engaged in any trade or business makes an assignment to any other person of his existing or future book debts or any class thereof, and is subsequently adjudicated bankrupt, the assignment shall be void against the trustee as regards any book debts which have not been paid at the commencement of the bankruptcy, unless the assignment has been registered as if the assignment were a bill of sale given otherwise than by way of security for the payment of a sum of money, and the provisions of the Lands and Deeds Registry Act with respect to the registration of bills of sale shall apply accordingly, Avoidance of general assignments of book debts unless registered Cap. 185

subject to such necessary modifications as may be made by rules under that Act: Provided that nothing in this section shall have effect so as to render void any assignment of book debts due at the date of the assignment from specified debtors, or debts growing due under specified contracts, or any assignment of book debts included in a transfer of business made bona fide and for value, or in any assignment of assets for the benefit of creditors generally. (2) For the purposes of this section, "assignment" includes assignment by way of security and other charges on book debts. Avoidance of 47. (1) Every conveyance or transfer of property, or charge thereon preference in made, every payment made, every obligation incurred, and every certain cases judicial proceeding taken or suffered, whether before or after a bankruptcy petition has been presented against him, by any person unable to pay his debts as they become due from his own money in favour of any creditor, or of any person in trust for any creditor, with a view of giving such creditor, or any surety or guarantor for the debt due to such creditor, a preference over the other creditors, shall, if the person making, taking, paying or suffering the same is adjudged bankrupt on a bankruptcy petition presented before, or within six months after, the date of making, taking, paying or suffering the same, be deemed fraudulent and void as against the trustee in the bankruptcy. (2) This section shall not affect the rights of any person making title in good faith and for valuable consideration through or under a creditor of the bankrupt. (3) Where a receiving order is made against a judgment debtor in pursuance of section ninety-nine, this section shall apply as if the debtor had been adjudged bankrupt on a bankruptcy petition presented at the date of the receiving order. 48. Subject to the foregoing provisions of this Act with respect to the effect of bankruptcy on an execution or attachment, and with respect to the avoidance of certain settlements, assignments and preferences, nothing in this Act shall invalidate, in the case of a bankruptcy(a) any payment by the bankrupt to any of his creditors; Protection ofbona fide transaction without notice

(b)

any payment or delivery to the bankrupt;

(c) any conveyance or assignment by the bankrupt for valuable consideration; (d) any contract, dealing or transaction by or with the bankrupt for valuable consideration: Provided that both the following conditions are complied with, namely: (i) that the payment, delivery, conveyance, assignment, contract, dealing or transaction, as the case may be, takes place before the date of the receiving order; and (ii) that the person (other than the debtor) to, by or with whom the payment, delivery, conveyance, assignment, contract, dealing or transaction was made, executed or entered into, has not at the time of the payment, delivery, conveyance, assignment, contract, dealing or transaction notice of any available act of bankruptcy committed by the bankrupt before that time. 49. A payment of money or delivery of property to a person subsequently adjudged bankrupt, or to a person claiming by assignment from him, shall, notwithstanding anything in this Act, be a good discharge to the person paying the money or delivering the property, if the payment or delivery is made before the actual date on which the receiving order is made and without notice of the presentation of a bankruptcy petition, and is either pursuant to the ordinary course of business or otherwise bona fide. 50. Where any money or property of a bankrupt has, on or after the date of the receiving order, but before notice thereof has been gazetted in the prescribed manner, been paid or transferred by a person having possession of it to some other person, and the payment or transfer is under the provisions of this Act void as against the trustee in the bankruptcy, then, if the person by whom the payment or transfer was made proves that when it was made he had not had notice of the receiving order, any right of recovery which the trustee may have against him in respect of the money or property shall not be enforced by any legal proceedings except where and in so far as the court is satisfied that it is not reasonably practicable for the trustee to recover in respect of the money or property or of some part thereof from the person to whom it was paid or transferred. Validity of certain payments to bankrupt and assignee

Recovery of property transferred without knowledge of receiving order

51. (1) All transactions by a bankrupt with any person dealing with him Dealings with bona fide and for value in respect of property, whether real or personal, undischarged acquired by the bankrupt after adjudication, shall, if completed before bankrupt any intervention by the trustee, be valid against the trustee, and any estate or interest in such property which by virtue of this Act is vested in the trustee shall determine and pass in such manner and to such extent as may be required for giving effect to any such transaction. (2) For the purposes of subsection (1), the receipt of any money, security or negotiable instrument from, or by the order or direction of, a bankrupt by his banker, and any payment and any delivery of any security or negotiable instrument made to, or by the order or direction of, a bankrupt by his banker, shall be deemed to be a transaction by the bankrupt with such banker dealing with him for value. (3) Where a banker has ascertained that a person having an account with him is an undischarged bankrupt, then, unless the banker is satisfied that the account is on behalf of some other person, it shall be his duty forthwith to inform the trustee in bankruptcy or the official receiver of the existence of the account, and thereafter he shall not make any payments out of the account, except under an order of the court or in accordance with instructions from the trustee in the bankruptcy, unless by the expiration of one month from the date of giving the information no instructions have been received from the trustee. Realisation of Property 52. (1) The trustee shall, as soon as may be, take possession of the deeds, books and documents of the bankrupt, and all other parts of his property capable of manual delivery. (2) The trustee shall, in relation to and for the purpose of acquiring or retaining possession of the property of the bankrupt, be in the same position as if he were a receiver of the property appointed by the court, and the court may, on his application, enforce such acquisition or retention accordingly. (3) Where any part of the property of the bankrupt consists of stock, shares in ships, shares, or any other property transferable in the books of any company, office or person, the trustee may exercise the right to Possession of property by trustee

transfer the property to the same extent as the bankrupt might have exercised it if he had not become bankrupt. (4) Where any part of the property of the bankrupt consists of things in action, such things shall be deemed to have been duly assigned to the trustee. (5) Subject to the provisions of this Act with respect to property acquired by a bankrupt after adjudication, any treasurer or other officer, or any banker, attorney, or agent of a bankrupt, shall pay and deliver to the trustee all money and securities in his possession or power, as such officer, banker, attorney, or agent, which he is not by law entitled to retain as against the bankrupt or the trustee. If he does not, he shall be guilty of contempt of court, and may be punished accordingly on the application of the trustee. 53. Any person acting under warrant of the court may seize any part of Seizure of the property of a bankrupt, or of a debtor against whom a receiving order property of bankrupt has been made, in the custody or possession of the bankrupt, or the debtor, or of any other person, and with a view to such seizure may break open any house, building or room of the bankrupt, or the debtor, where the bankrupt, or the debtor, is supposed to be, or any building or receptacle of the bankrupt, or the debtor, where any of his property is supposed to be; and where the court is satisfied that there is reason to believe that property of a bankrupt, or a debtor against whom a receiving order has been made, is concealed in a house or place not belonging to him, the court may, if it thinks fit, grant a search warrant to any police officer or officer of the court, who may execute it according to its tenor. 54. (1) Where the bankrupt is a member of the Defence Force, or a public officer, the trustee shall receive for distribution amongst the creditors so much of the bankrupt's pay or salary as the court, on the application of the trustee, with the consent of the Permanent Secretary of the Ministry under which the pay or salary is enjoyed, may direct; but before making any order under this subsection, the court shall communicate with such Permanent Secretary as to the amount, time and manner of the payment to the trustee, and shall obtain the written consent of such Permanent Secretary to the terms of such payment. (2) Where a bankrupt is in receipt of a salary or income other than as aforesaid, or is entitled to any half-pay, or pension, or to any Appropriation of portion of salary or wages to creditors

compensation granted by the State, the court, on the application of the trustee, shall from time to time make such order as it thinks just for the payment of the salary, income, half-pay, pension, or compensation, or of any part thereof, to the trustee, to be applied by him in such manner as the court may direct. (3) Where a bankrupt is an employee and earning wages or other remuneration, whether or not payment of such wages or other remuneration is made by the day or by any other period of time, and whether or not the amount of such wages or other remuneration is calculated by reference to hourly rates, or rates related to any other period of time, or piece-work rates, or shift rates or overtime rates, or in any way otherwise calculated, the court, on the application of the trustee shall, from time to time, make such order as it thinks just, for the payment of any part of such wages or other remuneration to the trustee, to be applied by him in such manner as the court may direct. (4) Every order made under subsection (1) shall be served upon the bankrupt and upon the Permanent Secretary of the Ministry under which the pay or salary is enjoyed, and every order made under subsection (2) or (3) shall be served upon the bankrupt, and may also be served upon the person by whom such salary or income, or half-pay, or pension, or compensation, or wages or other remuneration is paid, or upon the bankrupt's employer, as the case may be; and, if any such order as aforesaid is served upon such Permanent Secretary, or the person paying such salary or income, or half-pay, or pension, or compensation, or wages or other remuneration, or the employer, as the case may be, the amounts of salary or income, or half-pay, or pension, or compensation, or wages, or other remuneration specified in such order shall thereafter be paid to the trustee in conformity with the terms thereof. (5) Nothing in this section shall take away or abridge any power of the President to dismiss a bankrupt, or to declare the half-pay, or pension, or compensation, or any part thereof, of any bankrupt to be forfeited. 55. (1) Until a trustee is appointed, the official receiver shall be the trustee for the purposes of this Act, and, immediately on a debtor being adjudicated bankrupt, the property of the bankrupt shall vest in the official receiver as such trustee. (2) On the appointment of a trustee, the property shall forthwith pass to Vesting and transfer of property

and vest in the trustee appointed. (3) The property of the bankrupt shall pass from trustee to trustee, including under that term the official receiver when he fills the office of trustee, and shall vest in the trustee for the time being during his continuance in office without any conveyance, assignment, or transfer whatever. (4) An order of adjudication in bankruptcy together with, if a trustee has been appointed, the certificate of appointment of such trustee, shall for all purposes of any law in force in Zambia requiring registration of conveyances, assignments or transfers of property, be deemed to be such a conveyance, assignment or transfer, and may be registered accordingly. Cap. 185 (5) Notwithstanding the provisions of this section, no land situate in Zambia, and no interest in any such land, shall vest in the official receiver, or in the trustee, until the official receiver, or such trustee, has been registered as Proprietor thereof, or has been registered as Registered Proprietor thereof, as provided by the Lands and Deeds Registry Act. 56. (1) Where any part of the property of a bankrupt consists of land of Disclaimer of any tenure burdened with onerous covenants, of shares or stock in onerous companies, of unprofitable contracts, or of any other property that is property unsaleable, or not readily saleable, by reason of its binding the possessor thereof to the performance of any onerous act, or to the payment of any sum of money, the trustee, notwithstanding that he has endeavoured to sell or has taken possession of the property, or exercised any act of ownership in relation thereto, but subject to the provisions of this section, may, by writing signed by him, at any time within twelve months after the first appointment of a trustee, or within twelve months from the date of the order of adjudication, if the official receiver is acting as trustee in default of the appointment of a trustee, or such extended period as may be allowed by the court, disclaim the property: Provided that, where any such property has not come to the knowledge of the trustee within one month after such appointment, or after the date of the order of adjudication, as the case may be, he may disclaim such property at any time within twelve months after he has become aware thereof, or such extended period as may be allowed by the court.

(2) The disclaimer shall operate to determine, as from the date of disclaimer, the rights, interests and liabilities of the bankrupt and his property in or in respect of the property disclaimed, and shall also discharge the trustee from all personal liability in respect of the property disclaimed, as from the date when the property vested in him, but shall not, except so far as is necessary for the purpose of releasing the bankrupt and his property and the trustee from liability, affect the rights or liabilities of any other person. Cap. 185 (3) A trustee shall not be entitled to disclaim a State lease or a lease registered under the provisions of the Lands and Deeds Registry Act without the leave of the court, and the court may, before or on granting such leave, require such notices to be given to persons interested, and impose such terms as a condition of granting leave, and make such orders with respect to fixtures, tenant's improvements, and other matters arising out of the tenancy, as the court thinks just. (4) The trustee shall not be entitled to disclaim any property in pursuance of this section in any case where an application in writing has been made to the trustee by any person interested in the property requiring him to decide whether he will disclaim or not, and the trustee has for a period of twenty-eight days after the receipt of the application or such extended period as may be allowed by the court, declined or neglected to give notice whether he disclaims the property or not; and in the case of a contract, if the trustee, after such application as aforesaid, does not within the said period or extended period, disclaim the contract, he shall be deemed to have adopted it. (5) The court may, on the application of any person who is, as against the trustee, entitled to the benefit or subject to the burden of a contract made with the bankrupt, make an order rescinding the contract on such terms as to payment by or to either party of damages for the non-performance of the contract, or otherwise, as to the court may seem equitable, and any damages payable under the order to any such person may be proved by him as a debt under the bankruptcy. (6) The court may, on application by any person either claiming any Cap. 185 interest in any disclaimed property or under any liability not discharged by this Act in respect of any disclaimed property, and on hearing such persons as it thinks fit, make an order for the vesting of the property in or

delivery thereof to any person entitled thereto, or to whom it may seem just that the same shall be delivered by way of compensation for such liability as aforesaid, or a trustee for him, and on such terms as the court thinks just; and on any such vesting order being made, the property comprised therein shall vest accordingly, on registration of such vesting order under the provisions of the Lands and Deeds Registry Act, if such property consists of land or an interest in land, in the person therein named in that behalf without any conveyance or assignment for the purpose. Provided that, where the property disclaimed is of a lease-hold nature, the court shall not make a vesting order in favour of any person claiming under the bankrupt, whether as under-lessee or as mortgagee except upon the terms of making that person(a) subject to the same liabilities and obligations as the bankrupt was subject to under the lease in respect of the property at the date when the bankruptcy petition was filed; or (b) if the court thinks fit, subject only to the same liabilities and obligations as if the lease had been assigned to that person at that date; and in either event (if the case so requires) as if the lease had comprised only the property comprised in the vesting order; and any mortgagee or underlessee declining to accept a vesting order upon such terms shall be excluded from all interest in and security upon the property, and, if there is no person claiming under the bankrupt who is willing to accept an order upon such terms, the court shall have power to vest the bankrupt's estate and interest in the property in any person liable either personally or in a representative character, and either alone or jointly with the bankrupt to perform the lessee's covenants in the lease, freed and discharged from all estates, incumbrances and interests created therein by the bankrupt. (7) Where, on the release, removal, resignation or death of a trustee in bankruptcy, the official receiver is acting as trustee, he may disclaim any property which might be disclaimed by a trustee under the foregoing provisions, notwithstanding that the time prescribed by this section for such disclaimer has expired, but such power of disclaimer shall be exercisable only within twelve months after the official receiver has become trustee in the circumstances aforesaid, or has become aware of the existence of such property, whichever period may last expire.

(8) Any person injured by the operation of a disclaimer under this section shall be deemed to be a creditor of the bankrupt to the extent of the injury, and may accordingly prove the same as a debt under the bankruptcy. (9) No land situate in Zambia held in fee simple by a person who has become bankrupt shall be disclaimed by the trustee, or any other person entitled thereto, except with the consent of the President and by transfer to the State. 57. Subject to the provisions of this Act, the trustee may do all or any Powers of trustee to deal of the following things: (a) sell all or any part of the property of the bankrupt (including the with property goodwill of the business, if any, and the book debts due or growing due to the bankrupt), by public auction, or tender, or private contract, with power to transfer the whole thereof to any person or company, or to sell the same in parcels; (b) give receipts for any money received by him, which receipts shall effectually discharge the person paying the money from all responsibility in respect of the application thereof; (c) prove, rank, claim and draw a dividend in respect of any debt due to the bankrupt; (d) exercise any powers, the capacity to exercise which is vested in the trustee under this Act, and execute any powers of attorney, deeds and other instruments for the purpose of carrying into effect the provisions of this Act; (e) deal with any property to which the bankrupt is beneficially entitled as tenant in tail in the same manner as the bankrupt might have dealt with it; and sections 56 to 58, 60 to 65, 67 and 71 of the Fines and Recoveries Act, 1833, of the United Kingdom, shall extend and apply to proceedings under this Act as if those sections were herein re-enacted and in terms made applicable to those proceedings. 58. (1) The trustee may, with the permission of the committee of inspection, do all or any of the following things: Powers exercisable by trustee with permission of committee of inspection

(a) carry on the business of the bankrupt, so far as may be necessary for the beneficial winding-up of the same; (b) bring, institute or defend any action or other legal proceeding relating to the property of the bankrupt; (c) employ a solicitor or other agent to take any proceedings or do any business which may be sanctioned by the committee of inspection; (d) accept as the consideration for the sale of any property of the bankrupt a sum of money payable at a future time subject to such stipulations as to security and otherwise as the committee thinks fit; (e) mortgage or pledge any part of the property of the bankrupt for the purpose of raising money for the payment of his debts; (f) refer any dispute to arbitration, compromise any debts, claims and liabilities, whether present or future, certain or contingent, liquidated or unliquidated, subsisting or supposed to subsist between the bankrupt and any person who may have incurred any liability to the bankrupt, on the receipt of such sums, payable at such times, and generally on such terms as may be agreed on; (g) make such compromise or other arrangement as may be thought expedient with creditors, or persons claiming to be creditors, in respect of any debts provable under the bankruptcy; (h) make such compromise or other arrangement as may be thought expedient with respect to any claim arising out of or incidental to the property of the bankrupt, made or capable of being made on the trustee by any person or by the trustee on any person; (i) divide in its existing form amongst the creditors, according to its estimated value, any property which from its peculiar nature or other special circumstances cannot be readily or advantageously sold. (2) The permission given for the purposes of subsection (1) shall not be a general permission to do all or any of the above-mentioned things, but shall only be a permission to do the particular thing or things for which permission is sought in the specified case or cases.

(3) All or any of the things mentioned in subsection (1) may, subject to the provisions of this Act, be done without such permission by the official receiver when acting as trustee, if a committee of inspection has not been appointed. 59. The trustee, with the permission of the committee of inspection, may appoint the bankrupt himself to superintend the management of the property of the bankrupt or of any part thereof, or to carry on the trade (if any) of the bankrupt for the benefit of his creditors, and in any other respect to aid in administering the property, in such manner and on such terms as the trustee may direct: Provided that no such permission shall be required when the official receiver is acting as trustee and a committee of inspection has not been appointed. 60. The trustee may from time to time, with the permission of the committee of inspection, make such allowance as he may think just to the bankrupt out of his property for the support of the bankrupt and his family, or in consideration of his services if he is engaged in winding up his estate, but any such allowance may be reduced by the court: Provided that no such permission shall be required when the official receiver is acting as trustee and a committee of inspection has not been appointed. 61. Where any goods of a debtor against whom a receiving order has Right of trustee been made are held by any person by way of pledge, pawn or other to inspect goods security, it shall be lawful for the official receiver or trustee, after giving pawned, etc. notice in writing of his intention to do so, to inspect the goods, and, where such notice has been given, such person as aforesaid shall not be entitled to realise his security until he has given the trustee a reasonable opportunity of inspecting the goods and of exercising his right of redemption if he thinks fit to do so. 62. Where the property of a bankrupt comprises the copyright in any work or any interest in such copyright, and he is liable to pay to the author of the work royalties or a share of the profits in respect thereof, the trustee shall not be entitled to sell, or authorise the sale of, any copies Limitation of trustee's powers in relation to copyright Allowance to bankrupt for maintenance or service Power to allow bankrupt to manage property

of the work, or to perform or authorise the performance of the work, except on the terms of paying to the author such sums by way of royalty or share of the profits as would have been payable by the bankrupt, nor shall he, without the consent of the author or of the court, be entitled to assign the right or transfer the interest or to grant any interest in the right by licence, except upon terms which will secure to the author payments by way of royalty or share of the profits at a rate not less than that which the bankrupt was liable to pay. 63. Where the official receiver or trustee has seized or disposed of any goods, chattels, property or other effects in the possession or on the premises of a debtor against whom a receiving order has been made, without notice of any claim by any person in respect of the same, and it is thereafter made to appear that the said goods, chattels, property or other effects were not, at the date of the receiving order, the property of the debtor, the official receiver or trustee shall not be personally liable for any loss or damage arising from such seizure or disposal sustained by any person claiming such property, nor for the costs of any proceedings taken to establish a claim thereto, unless the court is of opinion that the official receiver or trustee has been guilty of negligence in respect of the same. Distribution of Property 64. (1) Subject to the retention of such sums as may be necessary for the costs of administration, or otherwise, the trustee shall, with all convenient speed, declare and distribute dividends amongst the creditors who have proved their debts. (2) Before declaring a dividend, the trustee shall cause notice of his intention to do so to be gazetted in the prescribed manner, and shall also send reasonable notice thereof, specifying the latest date for lodging proofs, to each person who has been notified to him as being a creditor and who has not proved his debt or has not established it to his satisfaction. (3) After the latest date so specified for lodging proofs, or, if the court on application by any person claiming to be a creditor grants him further time for establishing his claim, then, on the expiration of such further time, the property of the bankrupt shall be divided among the creditors whose proofs of debt have been admitted for dividend, without regard to the claims of any other persons. Declaration and distribution of dividends Protection of official receiver and trustees from personal liability in certain cases

(4) When the trustee has declared a dividend, he shall send to each creditor whose proof has been admitted a notice showing the amount of the dividend and when and how it is payable. 65. (1) In the case of partners the joint estate shall be applicable in the Joint and first instance in payment of their joint debts, and the separate estate of separate dividends each partner shall be applicable in the first instance in payment of his separate debts. If there is a surplus of the separate estates, it shall be dealt with as part of the joint estates. If there is a surplus of the joint estate, it shall be dealt with as part of the respective separate estates in proportion to the right and interest of each partner in the joint estate. (2) Where one partner of a firm is adjudged bankrupt, a creditor to whom the bankrupt is indebted jointly with the other partners of the firm, or any of them, shall not receive any dividend out of the separate property of the bankrupt until all the separate creditors have received the full amount of their respective debts. (3) Where joint and separate properties are being administered, the expenses of and incidental to such administration shall be fairly apportioned by the trustee between the joint and separate properties, regard being had to the work done for and the benefit received by each property. 66. (1) In the calculation and distribution of a dividend the trustee shall make provision for debts provable in bankruptcy appearing from the bankrupt's statements of affairs, or otherwise, to be due to persons resident in places so distant from the place where the trustee is acting that in the ordinary course of communication they have not had sufficient time to tender their proofs, or to establish them if disputed, and also for debts provable in bankruptcy the subject of claims not yet determined. (2) He shall also make provision for any disputed proofs or claims, and for the expenses necessary for the administration of the estate or otherwise. (3) Subject to the foregoing provisions and to section one hundred and Provision for creditors residing at a distance, etc.

thirty-seven, he shall distribute as dividends all money in hand. 67. Any creditor who has not proved his debt by the latest date for lodging proofs as specified in the notice of intention to declare a dividend shall not participate in that dividend, but shall be entitled to be paid out of any money for the time being in the hands of the trustee any dividend or dividends he may have failed to receive before that money is applied to the payment of any future dividend or dividends. Right of creditor who has not proved debt before declaration of a dividend

68. (1) Where a debt has been proved, and the debt includes interest, or Interest on debts any pecuniary consideration in lieu of interest, such interest or consideration shall, for the purposes of dividend, be calculated at a rate not exceeding five per centum per annum, without prejudice to the right of a creditor to receive out of the estate any higher rate of interest to which he may be entitled after all the debts proved in the estate have been paid in full. (2) In dealing with the proof of the debt, the following rules shall be observed: (a) any account settled between the debtor and the creditor within three years preceding the date of the receiving order may be examined, and if it appears that the settlement of the account forms substantially one transaction with any debt alleged to be due out of the debtor's estate (whether in the form of renewal of a loan or capitalisation of interest or ascertainment of loans or otherwise), the account may be reopened and the whole transaction treated as one; (b) any payments made by the debtor to the creditor before the receiving order, whether by way of bonus or otherwise, and any sums received by the creditor before the receiving order from the realisation of any security for the debt, shall, notwithstanding any agreement to the contrary, be appropriated to principal and interest in the proportion that the principal bears to the sum payable as interest at the agreed rate; (c) where the debt due is secured and the security is realised after the receiving order, or the value thereof is assessed in the proof, the amount realised or assessed shall be appropriated to the satisfaction of principal and interest in the proportion that the principal bears to the sum payable as interest at the agreed rate.

69. No action for a dividend shall lie against the trustee, but, if the trustee refuses to pay, or unreasonably delays in paying, any dividend, the court may, if it thinks fit, order him to pay it, and also to pay out of his own money interest thereon for the time that it is withheld, and the costs of the application.

No action for dividend

70. The bankrupt shall be entitled to any surplus remaining after Right of payment in full of his creditors as by this Act provided, and of the costs, bankrupt to charges and expenses of the proceedings under the bankruptcy petition. surplus

PART IV OFFICIAL RECEIVER AND STAFF 71. (1) There shall be an official receiver of debtors' estates for Zambia, Appointment of and as many assistant official receivers as may be required from time to official receiver and assistant time. official receivers (2) The official receiver and the assistant official receivers shall be appointed and be removable by the Public Service Commission acting in the name of, and on behalf of, the President and they shall be officers of the court. (3) An assistant official receiver shall have the same powers, rights and duties, and shall be subject to the liabilities, of the official receiver under this Act, and may represent the official receiver in all matters, including proceedings in court. (4) The official receiver shall be a corporation sole by the name of the official receiver and shall have perpetual succession, and an official seal, and may sue, or be sued in his corporate name. (5) Where, at the commencement of this Act, any property is vested in any person by virtue of his office of official receiver, the said property shall, by virtue of this Act, vest in the official receiver in his corporate

name. 72. (1) A fit and proper person may be appointed to act in the office of, and to discharge the duties of, the official receiver during any temporary vacancy in that office, or during the temporary absence of the official receiver through illness or otherwise. (2) A fit and proper person may at any time be appointed by the official receiver to be a deputy official receiver, under such conditions as to remuneration and otherwise as the circumstances may require, and a person so appointed shall have the same powers, rights and duties, and shall be subject to the same liabilities as the official receiver. (3) The appointment of an acting official receiver made in pursuance of subsection (1) shall terminate upon the reason for the appointment ceasing to exist. (4) The appointment of any person as deputy official receiver in pursuance of subsection (2) may be terminated where the circumstances shall so require. 73. (1) The duties of the official receiver shall have relation both to the Status of conduct of the debtor and to the administration of his estate. official receiver (2) The official receiver may, for the purpose of affidavits, verifying proofs, petitions, or other proceedings under this Act, administer oaths. (3) All provisions in this or any other Act referring to the trustee in bankruptcy shall, unless the context otherwise requires, or the Act otherwise provides, include the official receiver when acting as trustee. (4) The trustee shall supply the official receiver with such information, and give him such access to and facilities for inspecting the bankrupt's books and documents, and generally shall give him such aid, as may be requisite for enabling the official receiver to perform his duties under this Act. 74. As regards the debtor, it shall be the duty of the official receiverDuties of Appointment of acting and deputy official receiver

(a) to investigate the conduct of the debtor and to report to the court, stating whether there is reason to believe that the debtor has committed any act which would justify the court in refusing, suspending or qualifying an order for his discharge; (b) to make such other reports concerning the conduct of the debtor as the court may direct; (c) to take such part as may be directed by the court in the public examination of the debtor; (d) to take such part and give such assistance in relation to the prosecution of any fraudulent debtor as by law provided. 75. (1) As regards the estate of a debtor, it shall be the duty of the official receiver-

official receiver as regards debtor's conduct

Duties of official receiver as regards (a) on the making of a receiving order and prior to an order of adjudication, to act as interim receiver of the debtor's estate, and, where debtor's estate a special manager is not appointed, as manager thereof; (b) to authorise the special manager to raise money or make advances for the purposes of the estate in any case where, in the interests of the creditors, it appears necessary so to do; (c) (d) to summon and preside at the first meeting of creditors; to issue forms of proxy for use at the meetings of creditors;

(e) to report to the creditors, save as in this Act otherwise provided, as to any proposal which the debtor may have made with respect to the mode of liquidating his affairs; (f) to advertise the receiving order, the date of the creditors' first meeting and of the debtor's public examination, the adjudication order, and such other matters as it may be necessary to advertise; (g) to act as trustee until a trustee be appointed and during any vacancy in the office of trustee. (2) For the purpose of his duties as interim receiver or manager, the official receiver shall have the same powers as if he were a receiver and manager appointed by the court, but shall, as far as practicable, consult the wishes of the creditors with respect to the management of the

debtor's property, and may for that purpose, if he thinks it advisable, summon meetings of the persons claiming to be creditors, and shall not, unless the court otherwise orders, incur any expense beyond such as is requisite for the protection of the debtor's property or the disposing of perishable goods: Provided that, when the debtor cannot himself prepare a proper statement of affairs, the official receiver may, subject to any prescribed conditions and at the expense of the estate, employ some person or persons to assist in the preparation of the statement of affairs.

PART V TRUSTEES IN BANKRUPTCY Official Name 76. The official name of a trustee in bankruptcy shall be "the trustee of Official name of trustee the property of ...................a bankrupt" (inserting the name of the bankrupt), and by that name the trustee may hold property of every description, make contracts, sue and be sued, enter into any engagements binding on himself and his successors in office, and do all other acts necessary or expedient to be done in the execution of his office. Appointment 77. (1) The creditors may, if they think fit, appoint more persons than one to the office of trustee, and when more persons than one are appointed they shall declare whether any act required or authorised to be done by the trustee is to be done by all or any one or more of such persons, but all such persons are in this Act included under the term "trustee", and shall be joint tenants of the property of the bankrupt. (2) The creditors may also appoint persons to act as trustees in succession in the event of one or more of the persons first named declining to accept the office of trustee, or failing to give security, or of the appointment of any such person not being certified by the official receiver. Power to appoint joint or successive trustees

78. (1) If a vacancy occurs in the office of a trustee, the creditors in Proceedings in general meeting may appoint a person to fill the vacancy, and thereupon case of vacancy the same proceedings shall be taken as in the case of a first appointment. in office of trustee (2) The official receiver shall, on the requisition of any creditor, summon a meeting for the purpose of filling any such vacancy. 79. (1) Subject to the provisions of this Act, the trustee shall, in the administration of the property of the bankrupt and in the distribution thereof amongst his creditors, have regard to any directions that may be given by resolution of the creditors at any general meeting, or by the committee of inspection, and any directions so given by the creditors at any general meeting shall, in case of conflict, be deemed to override any directions given by the committee of inspection. (2) The trustee may from time to time summon general meetings of the creditors for the purpose of ascertaining their wishes, and it shall be his duty to summon meetings at such times as the creditors, by resolution, either at the meeting appointing the trustee or otherwise, may direct, and it shall be lawful for any creditor, with the concurrence of one-sixth in value of the creditors (including himself), at any time to request the trustee or official receiver to call a meeting of the creditors, and the trustee or official receiver shall call such meeting accordingly within fourteen days: Provided that the persons at whose instance the meeting is summoned shall deposit with the trustee or the official receiver, as the case may be, a sum sufficient to pay the costs of summoning the meeting, such sum to be repaid to him out of the estate if the creditors or the court so direct. (3) The trustee may apply to the court in manner prescribed for directions in relation to any particular matter arising under the bankruptcy. (4) Subject to the provisions of this Act, the trustee shall use his own discretion in the management of the estate and its distribution among the creditors. Discretionary powers of trustee and control thereof

80. If the bankrupt or any creditor, or any other person, is aggrieved by any act or decision of the trustee or official receiver, he may apply to the court, and the court may confirm, reverse or modify the act or decision complained of, and make such order in the premises at it thinks just.

Appeal to court against trustee or official receiver

81. (1) The official receiver shall take cognizance of the conduct of Control of trustees, and, in the event of any trustee not faithfully performing his official receiver duties and duly observing all the requirements imposed on him by over trustees statute, rules, or otherwise with respect to the performance of his duties, or in the event of any complaint being made to the official receiver by any creditor in regard thereto, the official receiver shall inquire into the matter and take such action thereon as may be deemed expedient. (2) The official receiver may at any time require any trustee to answer any inquiry made by him in relation to any bankruptcy in which the trustee is engaged, and may, if the official receiver thinks fit, apply to the court to examine on oath the trustee or any other person concerning the bankruptcy. (3) The official receiver may also direct an investigation to be made of the books and vouchers of the trustee and may employ an accountant for that purpose at the expense of the estate of the bankrupt: Provided that where the court so orders such expense shall be paid by the trustee personally. Remuneration and Costs 82. (1) Where the creditors appoint any person to be trustee of a debtor's estate, his remuneration (if any) shall be fixed by an ordinary resolution of the creditors, or, if the creditors so resolve, by the committee of inspection. (2) If one-fourth in number or value of the creditors dissent from the resolution, or the bankrupt satisfies the court that the remuneration is unnecessarily large, the court shall fix the amount of the remuneration. (3) The resolution shall express what expenses the remuneration is to cover, and no liability shall attach to the bankrupt's estate, or the Remuneration of trustee

creditors, in respect of any expenses which the remuneration is expressed to cover. (4) Where a trustee acts without remuneration, he shall be allowed out of the bankrupt's estate such proper expenses incurred by him in or about the proceedings of the bankruptcy as the creditors may, with the sanction of the court, approve. (5) A trustee shall not, under any circumstances whatever, make any arrangement for or accept from the bankrupt, or any legal practitioner, auctioneer, or any other person that may be employed about a bankruptcy, any gift, remuneration, or pecuniary or other consideration or benefit whatever beyond the remuneration fixed by the creditors and payable out of the estate, nor shall he make any arrangement for giving up, or give up, any part of his remuneration, either as receiver, manager, or trustee, to the bankrupt or any legal practitioner or other person that may be employed about a bankruptcy. Allowance and 83. (1) Where a trustee or manager receives remuneration for his services as such, no payment shall be allowed in his accounts in respect taxation of costs of the performance by any other person of the ordinary duties which are required by statute or rules to be performed by himself. (2) Where the trustee is a legal practitioner, he may contract that the remuneration for his services as trustee shall include all professional services. (3) All bills and charges of legal practitioners, managers, accountants, auctioneers, brokers, and other persons, not being trustees, shall be taxed by the prescribed officer if the trustee, or the official receiver, or one-fourth in number or value of the creditors, shall, by notice served on the person delivering such bill or making such charge, so require, and no payment in respect thereof shall then be allowed in the trustee's accounts without proof of such taxation having been made. The prescribed officer shall satisfy himself before passing such bills and charges that the employment of such legal practitioners and other persons, in respect of the particular matters out of which such bills or charges arise, has been duly sanctioned, where so required by the provisions of this Act or by general rules. The sanction must be obtained before the employment, except in cases of urgency, and in such cases it must be shown that no undue delay took place in obtaining the sanction.

(4) Every such person shall, on being so required by the trustee, or by the official receiver, or by one-fourth in number or value of the creditors (which request shall be made a sufficient time before declaring a dividend), deliver his bill of costs or charges to the proper officer for taxation, and, if he fails to do so within seven days after the receipt of the request, or such further time as the court, on application, may grant, the trustee shall declare and distribute the dividend without regard to any claim by him, and thereupon any such claim shall be forfeited as well against the trustee personally as against the estate. Receipts, Payments, Accounts, Audit Trustee to 84. The trustee or official receiver shall, whenever required by any creditor so to do, furnish and transmit to him by post a list of creditors furnish list of creditors showing the amount of the debt due to each creditor, and shall be entitled to charge for such list the sum of fifteen fee units and the further sum of three fee units for every folio of seventy-two words in excess of five folios, together with the cost of the postage thereof. (As amended by Act No. 13 of 1994) 85. It shall be lawful for any creditor, with the concurrence of one-sixth of the creditors (including himself), at any time to call upon the trustee or official receiver to furnish and transmit to the creditors a statement of the accounts up to the date of such notice, and the trustee shall, upon receipt of such notice, furnish and transmit such statement of the accounts: Provided that the person at whose instance the accounts are furnished shall deposit with the trustee or official receiver, as the case may be, a sum sufficient to pay the costs of furnishing and transmitting the accounts, which sum shall be repaid to him out of the estate if the creditors or the court so direct. 86. The trustee shall keep, in manner prescribed, proper books, in Books to be which he shall from time to time cause to be made entries or minutes of kept by trustee proceedings at meetings, and such other matters as may be prescribed, and any creditor of the bankrupt may, subject to the control of the court, personally or by his agent, inspect any such books. 87. (1) Every trustee in a bankruptcy shall from time to time, as may be Annual Trustee to furnish statement of creditors

prescribed, and not less than once in every year during the continuance of the bankruptcy, transmit to the official receiver a statement showing the proceedings in the bankruptcy up to the date of the statement, containing the prescribed particulars and made out in the prescribed form. (2) The official receiver shall cause the statements so transmitted to be examined, and shall call the trustee to account for any misfeasance, neglect or omission which may appear on the said statements or in his accounts or otherwise, and may require the trustee to make good any loss which the estate of the bankrupt may have sustained by the misfeasance, neglect or omission.

statement of proceedings

88. No trustee in a bankruptcy or under any composition or scheme of Trustee not to arrangement shall pay any sums received by him as trustee into his pay into private private banking account. account 89. (1) A Bankruptcy Estates Account shall be kept by the official receiver with a prescribed bank, and all moneys received by him in respect of proceedings under this Act shall be paid to that account. (2) Every trustee in bankruptcy shall, in such manner and at such times as the official receiver shall direct, pay the money received by him to the Bankruptcy Estates Account at the prescribed bank, and the official receiver shall furnish him with a certificate of receipt of the money so paid: Provided that(i) if it appears to the committee of inspection that, for the purpose of carrying on the debtor's business or obtaining advances, or because of the probable amount of the cash balance, or if the committee satisfies the official receiver that for any other reason it is for the advantage of the creditors that the trustee should have an account with a local bank, the official receiver shall, on the application of the committee of inspection, authorise the trustee to make his payments into and out of such local bank as the committee may select; (ii) in any bankruptcy, composition or scheme of arrangement in which the official receiver is acting as trustee, or in which a trustee is Bankruptcy Estates Account

acting without a committee of inspection, the court may, if for special reasons it thinks fit to do so, upon the application of the official receiver or other trustee, authorise the trustee to make his payments into and out of such local bank as the court may direct. (3) Where the trustee opens an account in a local bank, he shall open and keep it in the name of the debtor's estate, and any interest receivable in respect of the account shall be part of the assets of the estate, and the trustee shall make his payments into and out of the local bank in the prescribed manner. (4) If a trustee at any time retains for more than ten days a sum exceeding one hundred kwacha, or such other amount as the court in any particular case authorises him to retain, then, unless he explains the retention to the satisfaction of the court, he shall pay interest on the amount so retained in excess at the rate of twenty per centum per annum, and shall have no claim to remuneration, and may be removed from his office by the court, and shall be liable to pay any expenses occasioned by reason of his default. Investment of 90. (1) Whenever the cash balance standing to the credit of the surplus funds Bankruptcy Estates Account is in excess of the amount which in the opinion of the official receiver is required for the time being to answer demands in respect of bankrupts' estates, the official receiver may invest the excess of such cash balance or any part thereof by placing the same on deposit or in a savings account with the prescribed bank or on deposit in the Post Office Savings Bank and such deposit or savings account shall be held in the name of the official receiver for the credit of the Bankruptcy Estates Account. (2) Whenever any part of the money so invested is, in the opinion of the official receiver, required to answer any demands in respect of bankrupts' estates, the official receiver shall withdraw from deposit or from such savings account such sum as may be required and shall pay the same to the credit of the Bankruptcy Estates Account at the prescribed bank. (3) The interest on such deposit or savings account shall be transferred to the credit of the general revenues of the Republic, and regard shall be had to the amount thus derived in fixing the fees payable in respect of bankruptcy proceedings.

91. (1) Every trustee shall, at such times as may be prescribed, but not Audit of less than twice in each year during his tenure of office, send to the trustee's official receiver or as he may direct, an account of his receipts and accounts payments as such trustee. (2) The account shall be in a prescribed form, shall be made in duplicate, and shall be verified by a statutory declaration in the prescribed form. (3) The official receiver shall cause the accounts so sent to be audited, and, for the purposes of the audit, the trustee shall furnish the auditor with such vouchers and information as the auditor may require, and the auditor may at any time require the production of and inspect any books or accounts kept by the trustee. (4) When any such account has been audited, one copy thereof shall be filed and kept by the official receiver, and the other copy shall be filed with the court, and each copy shall be open to the inspection of any creditor, or of the bankrupt, or of any person interested. Vacation of Office by Trustee 92. (1) When the trustee has realised all the property of the bankrupt, or Release of trustee so much thereof as can, in his opinion, be realised without needlessly protracting the trusteeship, and distributed a final dividend, if any, or has ceased to act by reason of a composition having been approved, or has resigned, or has been removed from his office, the official receiver shall, on his application, cause a report on his accounts to be prepared, and, on his complying with all the requirements of the official receiver, shall take into consideration the report, and any objection which may be urged, by any creditor or person interested against the release of the trustee, and shall either grant or withhold the release accordingly, subject nevertheless to an appeal to the court. (2) Where the release of a trustee is withheld, the court may, on the application of any creditor or person interested, make such order as it thinks just, charging the trustee with the consequences of any act or default he may have done or made contrary to his duty.

(3) An order of the official receiver releasing the trustee shall discharge him from all liability in respect of any act done or default made by him in the administration of the affairs of the bankrupt, or otherwise in relation to his conduct as trustee, but any such order may be revoked on proof that it was obtained by fraud or by suppression or concealment of any material fact. (4) Where the trustee has not previously resigned or been removed, his release shall operate as a removal of him from his office, and thereupon the official receiver shall be the trustee. (5) Where, on the release of a trustee, the official receiver is, or is acting as, trustee, no liability shall attach to him personally in respect of any act done, or default made, or liability incurred, by any prior trustee. 93. If a receiving order is made against a trustee, he shall thereby vacate his office of trustee. Office of trustee vacated by insolvency

94. (1) The creditors may, by ordinary resolution, at a meeting Removal of specially called for that purpose, of which fourteen days' notice has been trustee given, remove a trustee appointed by them, and may, at the same or any subsequent meeting, appoint another person to fill the vacancy as hereinafter provided in case of a vacancy in the office of trustee. (2) If the official receiver is of opinion(a) that a trustee appointed by the creditors is guilty of misconduct or fails to perform his duties under this Act; or (b) that his trusteeship is being needlessly protracted without any probable advantage to the creditors; or (c) that he is, by reason of mental disorder or continued sickness or absence, incapable of performing his duties; or (d) that his connection with or relation to the bankrupt or his estate, or any particular creditor, might make it difficult for him to act with impartiality in the interest of the creditors generally; or

where in any other matter he has been removed from office on the ground of misconduct, the official receiver may remove the trustee from his office, subject nevertheless to an appeal to the court.

PART VI CONSTITUTION, PROCEDURE AND POWERS OF COURT Jurisdiction 95. (1) The court having jurisdiction in bankruptcy shall be the High Court. (2) Subject to general rules, all bankruptcy matters shall be entitled "In bankruptcy". 96. Subject to the provisions of this Act and to general rules, a Judge of Judge may the court may exercise in chambers the whole or any part of his exercise his powers in jurisdiction. chambers 97. (1) The registrars of the court shall have the powers and jurisdiction Jurisdiction in in this section mentioned, and any order made or act done by such bankruptcy of registrars in exercise of the said powers and jurisdiction shall be deemed registrar the order or act of the court. (2) Subject to general rules limiting the powers conferred by this section, a registrar shall have power(a) to hear bankruptcy petitions, and to make receiving orders and adjudications thereon; (b) (c) to hold the public examination of debtors; to grant orders of discharge; Jurisdiction in bankruptcy

(d) to hear and determine an application to act as director, or to manage, or take part in the management of, any company, or of any trade or business with a person who is a relative by consanguinity or affinity or in which any such person has an interest; (e) (f) to approve compositions or schemes of arrangement; to make interim orders in cases of urgency;

(g) to make any order or exercise any jurisdiction which by any rule in that behalf is prescribed as proper to be made or exercised in chambers; (h) to hear and determine any unopposed or ex parte application;

(i) to summon and examine any person known or suspected to have in his possession effects of the debtor or to be indebted to him, or capable of giving information respecting the debtor, his dealings or property; (j) to grant certificates of removal of disqualifications.

(3) A registrar shall not have power to commit for contempt of court. 98. (1) Subject to the provisions of this Act, the court shall have full General powers power to decide all questions of priorities, and all other questions of bankruptcy whatsoever, whether of law or fact, which may arise in any case of courts bankruptcy coming within the cognizance of the court, or which the court may deem it expedient or necessary to decide for the purpose of doing complete justice or making a complete distribution of property in any such case. (2) The court in the exercise of its jurisdiction in bankruptcy under this Cap. 25 Act shall not be subject to be restrained in the execution of its powers under this Act by the order of any other court, nor shall any appeal lie from its decisions, except in manner directed by this Act and by the Supreme Court of Zambia Act. (3) Where default is made by a trustee, debtor or other person in

obeying any order or direction given by the official receiver or any person lawfully acting on his behalf, the court may, on the application of the official receiver, order such defaulting trustee, debtor or person to comply with the order or directions so given; and the court may also, if it thinks fit upon any such application, make an immediate order for the committal of such defaulting trustee, debtor or other person: Provided that the power given by this subsection shall be in addition to and not in substitution for any other right or remedy in respect of such default. 99. Where application is made by a judgment creditor to the court for the committal of a judgment debtor, the court may, if it thinks fit, decline to commit, and in lieu thereof, with the consent of the judgment creditor and on payment by him of the prescribed fee, make a receiving order against the debtor; and in such case the judgment debtor shall be deemed to have committed an act of bankruptcy at the time the order is made, and the provisions of this Act shall apply as if for references to the presentation of a petition by or against a person there were substituted references to the making of such a receiving order. Appeals 100. (1) The court may at any time review, rescind or vary any order made by it under its bankruptcy jurisdiction. (2) Orders of the court in bankruptcy matters shall, at the instance of any person aggrieved, be subject to appeal, but no appeal shall be entertained except in conformity with such rules as may for the time being be in force in relation to the appeal. (3) Where by this Act an appeal to the court is given against any decision of the official receiver, the appeal shall be brought within twenty-one days from the time when the decision appealed against is pronounced or made. Procedure 101. (1) Subject to the provisions of this Act and to general rules, the Discretionary costs of and incidental to any proceeding in court under this Act shall be powers of court in the discretion of the court. Appeals in bankruptcy Power to make receiving order in lieu of committal order

(2) The court may at any time adjourn any proceedings before it upon such terms, if any, as it may think fit to impose. (3) The court may at any time amend any written process or proceeding under this Act upon such terms, if any, as it may think fit to impose. (4) Where by this Act, or by general rules, the time for doing any act or thing is limited, the court may extend the time either before or after the expiration thereof, upon such terms, if any, as the court may think fit to impose. (5) Subject to general rules under this Act, the court may in any matter take the whole or any part of the evidence either viva voce, or by interrogatories, or upon affidavit, or, out of Zambia, by commission. 102. Where two or more bankruptcy petitions are presented against the Consolidation of petitions same debtor or against joint debtors, the court may consolidate the proceedings, or any of them, on such terms as the court thinks fit. 103. Where the petitioner does not proceed with due diligence on his Power to petition, the court may substitute as petitioner any other creditor to change carriage whom the debtor may be indebted in the amount required by this Act in of proceedings the case of the petitioning creditor. 104. If a debtor by or against whom a bankruptcy petition has been presented dies, the proceedings in the matter shall, unless the court otherwise orders, be continued as if he were alive. Continuance of proceedings on death of debtor

105. The court may at any time, for sufficient reason, make an order Power to stay staying the proceedings under a bankruptcy petition, either altogether or proceedings for a limited time, on such terms and subject to such conditions as the court may think just. 106. Any creditor whose debt is sufficient to entitle him to present a bankruptcy petition against all the partners of a firm may present a petition against any one or more partners of the firm without including the others. Power to present petition against one partner

107. Where there are more respondents than one to a petition, the court Power to may dismiss the petition as to one or more of them, without prejudice to dismiss petition the effect of the petition as against the other or others of them. against some respondents only 108. Where a receiving order has been made on a bankruptcy petition Property of by or against one member of a partnership, any other bankruptcy partners to vest in same trustee petition by or against a member of the same partnership shall be filed with the first-mentioned petition, and, unless the court otherwise directs, the same trustee or receiver shall be appointed as may have been appointed in respect of the property of the first-mentioned member of the partnership, and the court may give such directions for consolidating the proceedings as it thinks just. 109. Where a member of a partnership is adjudged bankrupt, the court may authorise the trustee to commence and prosecute any action in the names of the trustee and of the bankrupt's partner; and any release by such partner of the debt or demand to which the action relates shall be void; but notice of the application for authority to commence the action shall be given to him, and he may show cause against it, and on his application the court may, if it thinks fit, direct that he shall receive his proper share of the proceeds of the action, and, if he does not claim any benefit therefrom, he shall be indemnified against costs in respect thereof as the court directs. Actions by trustee and bankrupt's partners

110. Where a bankrupt is a contractor in respect of any contract jointly Actions on joint with any person or persons, such person or persons may sue or be sued contracts in respect of the contract without the joinder of the bankrupt. 111. Any two or more persons, being partners, or any person carrying Proceedings in on business under a partnership name, may take proceedings or be partnership proceeded against under this Act in the name of the firm, but in such name case the court may, on application by any person interested, order the names of the persons who are partners in such firm or the name of such person to be disclosed in such manner, and verified on oath or otherwise, as the court may direct. Orders and Warrants of Court

112. The court and all the officers thereof shall, in all matters of bankruptcy, act in aid of and be auxiliary to every court elsewhere in the Commonwealth having jurisdiction in bankruptcy or insolvency, and an order of the court seeking aid, with a request to this court, shall be deemed sufficient to enable this court to exercise, in regard to the matters directed by the order, such jurisdiction as either the court which made the request or this court could exercise in regard to similar matters within their respective jurisdictions, save that to enable the official receiver of Zambia to act as the agent of an officer of a reciprocating court, or to enable an officer of this court to seek the aid of an official receiver of a reciprocating court, in the manner provided in Part IX, it shall not be necessary for this court, or any reciprocating court, to make any order, or send any request, under this section. 113. Where the court commits any person to prison, the commitment may be to such convenient prison as the court thinks expedient.

Courts to be auxiliary to other Commonwealth courts

Commitment to prison

PART VII SUPPLEMENTAL PROVISIONS Application of Act 114. A receiving order shall not be made against any corporation or against any partnership or association or company registered under the Companies Act, or any enactment repealed by that Act. Exclusion of companies Cap. 388

115. Subject to such modifications as may be made by general rules Limited under this Act, the provisions of this Act shall apply to limited partnerships partnerships in like manner as if limited partnerships were ordinary partnerships, and, on all the general partners of a limited partnership being adjudged bankrupt, the assets of the limited partnership shall vest in the trustee. 116. If a person having privilege of Parliament commits an act of bankruptcy, he may be dealt with under this Act in like manner as if he had not such privilege. Privilege of Parliament

117. Where a petition is presented by or against a debtor, if the court is Small estates satisfied by affidavit or otherwise, or the official receiver reports to the court, that the amount of the unsecured liabilities of the debtor is not likely to exceed in value four thousand kwacha, the court may make an order that the debtor's estate be administered in a summary manner, and thereupon the provisions of this Act shall be subject to the following modifications: (a) the appointment of a trustee shall be made only by special resolution of the creditors; (b) there shall be no public examination of the debtor unless the official receiver shall apply to the court that the debtor be publicly examined, or the court, on the application of a creditor, after hearing a report of the official receiver as to the assets and liabilities of the debtor and as to his conduct, shall so order; (c) such other modifications may be made in the provisions of this Act as may be prescribed by general rules with the view of saving expense and simplifying procedure; but nothing in this section shall permit the modification of the provisions of this Act relating to the discharge of the debtor; Provided that if the creditors at any time resolve that a trustee be appointed in the bankruptcy, thereupon the bankruptcy shall proceed as if an order for summary administration had not been made. 118. (1) Any creditor of a deceased debtor whose debt would have been sufficient to support a bankruptcy petition against the debtor, had he been alive, may present to the court a petition in the prescribed form praying for an order for the administration of the estate of the deceased debtor, according to the law of bankruptcy. (2) Upon the prescribed notice being given to the legal personal representative of the deceased debtor, if probate or letters of administration have been granted, the court may, in the prescribed manner, either before probate or letters of administration have been granted or afterwards, upon proof of the petitioner's debt, unless the court is satisfied that there is a reasonable probability that the estate will be sufficient for the payment of the debts owing by the deceased, make an order for the administration in bankruptcy of the deceased debtor's estate, or may, upon cause shown, dismiss the petition with or without costs. Administration in bankruptcy of estate of person dying insolvent

(3) A petition for administration under this section shall not be presented to the court after proceedings have been commenced in any court of justice for the administration of the deceased debtor's estate, but that court may, when satisfied that the estate is insufficient to pay its debts, transfer the proceedings to the court in the exercise of its jurisdiction in bankruptcy, and thereupon the last-mentioned court may, in the prescribed manner, make an order for the administration of the estate of the deceased debtor, and the like consequences shall ensue as under an administration order made on the petition of a creditor. (4) Upon an order being made for the administration of a deceased debtor's estate, the property of the debtor shall vest in the official receiver, as trustee thereof, and he shall forthwith proceed to realise and distribute it in accordance with the provisions of this Act: Provided that the creditors shall have the same powers as to appointment of trustees and committees of inspection as they have in other cases where the estate of a debtor is being administered or dealt with in bankruptcy, and the provisions of this Act, relating to trustees and committees of inspection, shall apply to trustees and committees of inspection appointed under the power so conferred. (5) With the modifications hereinafter mentioned, all the provisions of Part III (relating to the administration of the property of a bankrupt) and, subject to any modification that may be made therein by general rules under subsection (11), the following provisions, namely section twenty-seven (which relates to inquiries as to the debtor's conduct, dealings and property); section eighty-three (which relates to the costs of trustees, managers and other persons); and section one hundred and seventeen (which relates to the summary administration of small estates); shall, so far as the same are applicable, apply to the case of an administration order under this section in like manner as to an order of adjudication under this Act, and subsection (1) of section thirty-eight shall apply as if for the reference to an order of adjudication there were substituted a reference to an administration order under this section. (6) In the administration of the property of a deceased debtor under an order of administration, the official receiver or trustee shall have regard to any claim by the legal personal representative of the deceased debtor to payment of the proper funeral and testamentary expenses incurred by

him in and about the debtor's estate, and such claims shall be deemed a preferential debt under the order, and shall, notwithstanding anything to the contrary in the provisions of this Act or any other law relating to the priority of other debts, be payable in full out of the debtor's estate, in priority to all other debts. (7) If, on the administration of a deceased debtor's estate, any surplus remains in the hands of the official receiver or trustee, after payment in full of all the debts due from the debtor, together with the costs of the administration, such surplus shall be paid over to the legal personal representative (if any) of the deceased debtor's estate, or dealt with in such other manner as the court may order. (8) Notice to the legal personal representative of a deceased debtor of the presentation by a creditor of a petition under this section shall, in the event of an order for administration being made thereon, be deemed to be equivalent to notice of an act of bankruptcy, and after such notice no payment or transfer of property made by the legal personal representative shall operate as a discharge to him as between himself and the official receiver or trustee; save as aforesaid, nothing in this section shall invalidate any payment made or any act or thing done in good faith by the legal personal representative before the date of the order for administration. (9) A petition for the administration of the estate of a deceased debtor under this section may be presented by the legal personal representative of the debtor; and, where a petition is so presented by such a representative, this section shall apply subject to such modifications as may be prescribed by general rules made under subsection (11). (10) Unless the context otherwise requires, "creditor", in this section, means one or more creditors qualified to present a bankruptcy petition as in this Act provided. (11) General rules for carrying into effect the provisions of this section may be made in the same manner and to the like effect and extent as in bankruptcy. General Rules

119. The Chief Justice may, from time to time, by statutory instrument, Power to make make general rules for carrying into effect the objects of this Act; and general rules may, from time to time, alter, amend, or revoke all or any of such general rules, as occasion may require. Fees, Remuneration and Audit 120. The Chief Justice may prescribe a scale of fees and percentages to Fees and percentages be charged in respect of proceedings under this Act; and may, by statutory instrument, make general rules, regulating the deposits payable and by whom and in what manner such deposits, fees and percentages are to be collected and accounted for; and may, from time to time, vary, increase or diminish such fees and percentages and alter, amend or revoke all or any of such general rules, as occassion may require. Remuneration 121. (1) The Chief Justice, on the recommendation of the Remuneration Committee appointed pursuant to the Legal Practitioners Cap. 30 Act, may prescribe and regulate, in such manner as he may think fit, the remuneration of legal practitioners in respect of business done under this Act; and may vary, increase or diminish such remuneration as he may think fit, on such recommendation as aforesaid. (2) The Chief Justice may prescribe whether any and what remuneration is to be allowed to any person (other than a public officer or a legal practitioner) performing any duties under this Act; and may vary, increase or diminish such remuneration, as he may think fit. 122. The accounts of the official receiver in connection with proceedings under this Act shall be audited in such manner as the Minister responsible for finance may direct; and, for such purpose, the official receiver shall make such returns and give such information as the auditor appointed by the said Minister for the purpose may require. Evidence 123. (1) A copy of the Gazette containing any notice inserted therein in Gazetteto be pursuance of this Act shall be evidence of the facts stated in the notice. evidence (2) The production of a copy of the Gazette containing any notice of a receiving order, or of an order adjudging a debtor bankrupt, shall be Audit of accounts of official receiver

conclusive evidence in all legal proceedings of the order having been duly made, and of its date. 124. (1) A minute of proceedings at a meeting of creditors under this Act, signed at the same or the next ensuing meeting, by a person describing himself as, or appearing to be, chairman of the meeting at which the minute is signed, shall be received in evidence without further proof. (2) Until the contrary is proved, every meeting of creditors in respect of the proceedings whereof a minute has been so signed shall be deemed to have been duly convened and held, and all resolutions passed or proceedings had thereat to have been duly passed or had. Evidence of 125. Any petition or copy of a petition in bankruptcy, any order or proceedings in certificate or copy of an order or certificate made by the court, any instrument or copy of an instrument, affidavit or document made or used bankruptcy in the course of any bankruptcy proceedings or other proceedings had under this Act, shall, if it appears to be sealed with the seal of the court, or purports to be signed by any Judge thereof, or is certified as a true copy by any registrar thereof, be receivable in evidence in all legal proceedings whatever. 126. Subject to general rules, any affidavit to be used in the court may Swearing of be sworn before any person authorised to administer oaths in the High affidavits Court, or before any registrar in bankruptcy, or a magistrate, or, in the case of a person residing out of Zambia, before any person qualified to administer oaths in the country where he resides (he being certified to be qualified as aforesaid by a Zambian diplomatic representative or other diplomatic representative acting for the Republic of Zambia, or by a notary public). 127. In the case of the death of the debtor or his wife, or of a witness Death of debtor whose evidence has been received by the court in any proceeding under or witness this Act, the deposition of the person so deceased, purporting to be sealed with the seal of the court, or a copy thereof purporting to be so sealed, shall be admitted as evidence of the matters therein deposed to. 128. A certificate of the official receiver that a person has been appointed trustee under this Act shall be conclusive evidence of his Certificate of appointment of Evidence of proceedings at meetings of creditors

appointment.

trustee

129. A certificate signed by the official receiver that any order made, Certificate of certificate issued or act done, is the order, certificate or act of the official acts of official receiver shall be conclusive evidence of the fact so certified. receiver Miscellaneous 130. (1) Where by this Act or general rules any limited time from or Computation of after any date or event is appointed or allowed for the doing of any act or time the taking of any proceeding, then in the computation of that limited time the same shall be taken as exclusive of the day of that date or of the happening of that event, and as commencing at the beginning of the next following day; and the act or proceeding shall be done or taken at latest on the last day of that limited time as so computed, unless the last day is a Saturday, Sunday, public holiday or any other day on which the offices of the court are wholly closed, in which case any act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards which is not one of the days in this section specified. (2) Where by this Act or general rules the time limited for doing any act or thing is less than six days, a Saturday, Sunday, public holiday or any other day on which the offices of the court are wholly closed shall be excluded in computing such time. (3) Where by this Act or general rules any act or proceeding is directed to be done or taken on a certain day, then, if that day happens to be one of the days in this section specified, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards which is not one of the days in this section specified. 131. All notices and documents for the service of which no special mode is directed shall be sufficiently served if sent by post to the last known address of the person to be served therewith. 132. (1) No proceeding in bankruptcy shall be invalidated by any formal defect or by any irregularity, unless the court before which no objection is made to the proceeding is of opinion that substantial injustice has been caused by the defect or irregularity, and that the Service of notices

Formal defects not to invalidate proceedings

injustice cannot be remedied by any order of that court. (2) No defect or irregularity in the appointment or election of a receiver, special manager, trustee or member of a committee of inspection shall vitiate any act done by him in good faith. 133. Repealed by Act No. 17 of 1994.

134. For all or any of the purposes of this Act, a corporation may act by Acting as corporations, any of its officers authorised in that behalf under the seal of the corporation, a firm may act by any of its members, and a mentally partners, etc. disordered person may act by his receiver.
Certain provisions to bind the State

135. Save as provided in this Act, the provisions of this Act relating to the remedies against the property of a debtor, the priorities of debts, the effect of a composition or scheme of arrangement, and the effect of a discharge, shall bind the State. Unclaimed Dividends and Indivisible Balances

136. (1) Where the trustee, under any bankruptcy, composition or scheme, pursuant to this Act or any enactment referred to in the Third Schedule, has in his hands or under his control any unclaimed dividend which has remained unclaimed for more than six months, or where, after making a final dividend, he has in his hands or under his control any unclaimed or undistributed money arising from the property of the debtor, he shall forthwith pay it to the Bankruptcy Estates Account at the prescribed bank; and the official receiver shall furnish him with a certificate of receipt of the money so paid, which shall be an effectual discharge to him in respect thereof. (2) The provisions of this section shall not, except as expressly declared herein, deprive any person of any larger or other right or remedy to which he may be entitled against such trustee or the official receiver or other person. (3) Where any unclaimed dividends or undistributed money have been paid into the Bankruptcy Estates Account in pursuance of this section or

Unclaimed and undistributed dividends or funds

by the official receiver when acting as trustee, and have remained in that account for a period of not less than two years, the official receiver shall transfer such money to the credit of the general revenues of the Republic. (4) Any person claiming to be entitled to any money paid into the Bankruptcy Estates Account or the general revenues of the Republic pursuant to this section may apply to the official receiver for payment to him of the same, and the official receiver, if satisfied that the person claiming is so entitled, shall make payment to such person of the sum due; and if the money claimed has been paid to the credit of the general revenues of the Republic the Permanent Secretary, Ministry of Finance, shall direct that the same shall be paid, to the person so claiming, out of public funds, if the official receiver certifies that the person claiming is so entitled. (5) Any person dissatisfied with the decision of the official receiver in respect of his claim may appeal to the court. Indivisible 137. (1) Where the trustee, under any bankruptcy, composition or balances scheme, pursuant to this Act or any enactment referred to in the Third Schedule, has in his hands or under his control, after payment of all debts directed to be paid in priority in the distribution of the property of a bankrupt, any sum of money, not exceeding two hundred kwacha in amount, which is insufficient to pay a dividend of at least two and a half ngwee in the kwacha to creditors who have proved their debts, and it appears to him that retention of such money will needlessly protract the trusteeship, he may pay such money to the Bankruptcy Estates Account at the prescribed bank; and the official receiver shall furnish him with a certificate of receipt of the money so paid, which shall be an effectual discharge to him in respect thereof. (2) The money to which subsection (1) relates and any money under the control of the official receiver acting as trustee which, after payment of all debts directed to be paid in priority in the distribution of the property of a bankrupt, does not exceed two hundred kwacha in amount and is insufficient to pay a dividend of at least two and a half ngwee in the kwacha to creditors who have proved their debts, shall continue to be an asset of the estate of the bankrupt, or the debtor, as the case may be, but if it shall appear to the official receiver that there will be no addition to such money from further money coming to the credit of the said estate, the official receiver may transfer such money to the credit of the general

revenues of the Republic. (3) If further money shall come to the credit of the estate of the bankrupt, or the debtor, as the case may be, which, together with the moneys from such estate transferred to the credit of the general revenues of the Republic under the provisions of subsection (2), shall exceed two hundred kwacha or shall be sufficient to pay a dividend of at least two and a half ngwee in the kwacha to creditors who have proved their debts, the Permanent Secretary, Ministry of Finance, shall direct that such money so transferred be repaid into the Bankruptcy Estates Account for division between such creditors by way of dividend.

PART VIII BANKRUPTCY OFFENCES 138. (1) Any person who has been adjudged bankrupt or in respect of whose estate a receiving order has been made shall in each of the cases following be guilty of a misdemeanour: (a) if he does not to the best of his knowledge and belief fully and truly discover to the trustee all his property, real and personal, and how and to whom and for what consideration and when he disposed of any part thereof, except such part as he has disposed of in the ordinary way of his trade (if any) or laid out in the ordinary expense of his family, unless he proves that he had no intent to defraud; (b) if he does not deliver up to the trustee, or as he directs, all such part of his real and personal property as is in his custody or under his control, and which he is required by law to deliver up, unless he proves that he had no intent to defraud; (c) if he does not deliver up to the trustee, or as he directs, all books, documents, papers and writings in his custody or under his control relating to his property or affairs, unless he proves that he had no intent to defraud; (d) if, after the presentation of a bankruptcy petition by or against him, or within two years next before such presentation, he conceals any part of his property to the value of twenty kwacha or upwards, or Fraudulent debtors

conceals any debt due to or from him, unless he proves that he had no intent to defraud; (e) if, after the presentation of a bankruptcy petition by or against him, or within two years next before such presentation, he removes any part of his property to the value of twenty kwacha or upwards, unless he proves that he had no intent to defraud; (f) if he makes any material omission in any statement relating to his affairs, unless he proves that he had no intent to defraud; (g) if, knowing or believing that a false debt has been proved by any person under the bankruptcy, he fails for the period of a month to inform the trustee thereof; (h) if, after the presentation of a bankruptcy petition by or against him, he prevents the production of any book, document, paper or writing affecting or relating to his property or affairs, unless he proves that he had no intent to conceal the state of his affairs or to defeat the law; (i) if, after the presentation of a bankruptcy petition by or against him, or within two years next before such presentation, he conceals, destroys, mutilates or falsifies, or is privy to the concealment, destruction, mutilation or falsification of any book or document affecting or relating to his property or affairs, unless he proves that he had no intent to conceal the state of his affairs or to defeat the law; (j) if, after the presentation of a bankruptcy petition by or against him, or within two years next before such presentation, he makes or is privy to the making of any false entry in any book or document affecting or relating to his property or affairs, unless he proves that he had no intent to conceal the state of his affairs or to defeat the law; (k) if, after the presentation of a bankruptcy petition by or against him, or within two years next before such presentation, he parts with, alters, or makes any omission in, or is privy to parting with, altering, or making any omission in, any document affecting or relating to his property or affairs, unless he proves that he had no intent to defraud; (l) if, after the presentation of a bankruptcy petition by or against him, or at any meeting of his creditors within two years next before such presentation, he attempts to account for any part of his property by fictitious losses or expenses;

(m) if, within two years next before the presentation of a bankruptcy petition by or against him, or after the presentation of a bankruptcy petition and before the making of a receiving order, he, by any false representation or other fraud, has obtained any property on credit and has not paid for the same; (n) if, within two years next before the presentation of a bankruptcy petition by or against him, or after the presentation of a bankruptcy petition and before the making of a receiving order, he obtains under the false pretence of carrying on business, and, if a trader, of dealing in the ordinary way of his trade, any property on credit and has not paid for the same, unless he proves that he had no intent to defraud; (o) if, within two years next before the presentation of a bankruptcy petition by or against him, or after the presentation of a bankruptcy petition and before the making of a receiving order, he pawns, pledges or disposes of any property which he has obtained on credit and has not paid for, unless in the case of a trader, such pawning, pledging or disposing is in the ordinary way of his trade, and unless in any case he proves that he had no intent to defraud; (p) if he is guilty of any false representation or other fraud for the purpose of obtaining the consent of his creditors or any of them to an agreement with reference to his affairs or to his bankruptcy; (q) if he makes default in payment for the benefit of his creditors of any portion of salary, wages or other income in respect of the payment of which the court is authorised to make an order; (r) if, within one year immediately preceding the date of the making of the receiving order, he has continued to trade or carry on business, after knowing himself to be insolvent; (s) if, within six months before the making of a receiving order, he sells goods at a price lower than cost, unless he proves that he had no intent to defraud; (t) if he has contracted any debt provable in the bankruptcy without having at the time of contracting it any reasonable or probable ground of expectation (proof whereof shall lie on him) of being able to pay it.

(2) For the purposes of this section, "trustee" means the official receiver or trustee administering the debtor's estate for the benefit of his creditors. (3) Any person guilty of a misdemeanour under subsection (1) shall be liable on conviction to imprisonment for a term not exceeding three years, except in the cases mentioned respectively in paragraphs (m), (n) and (o) of such subsection when he shall be liable to imprisonment for a term not exceeding five years. (4) Where any person pawns, pledges or disposes of any property in circumstances which amount to an offence under paragraph (o) of subsection (1), every person who takes in pawn or pledge or otherwise receives the property knowing it to be pawned, pledged or disposed of in such circumstances as aforesaid, shall be guilty of a misdemeanour and on conviction thereof liable to be punished in the same way as if he had received the property knowing it to have been obtained in circumstances amounting to a misdemeanour. Undischarged 139. Where a person who has been adjudged bankrupt in Zambia or adjudged bankrupt or insolvent in any reciprocating country and has not bankrupt obtaining credit obtained his discharge(a) either alone or jointly with any other person obtains credit to the extent of twenty kwacha or upwards from any person without informing that person that he is an undischarged bankrupt; or (b) engages in any trade or business under a name other than that under which he was adjudged bankrupt or insolvent without disclosing to all persons with whom he enters into any business transaction the name under which he was adjudged bankrupt or insolvent; he shall be guilty of a misdemeanour.

140. (1) If any person who has been adjudged bankrupt or in respect of Frauds by whose estate a receiving order has been madebankrupts, etc. (a) in incurring any debt or liability, has obtained credit under false pretences or by means of any other fraud; or (b) with intent to defraud his creditors or any of them, has made or caused to be made any gift or transfer of, or charge on, his property; or

(c) with intent to defraud his creditors, has concealed or removed any part of his property since, or within two months before, the date of any unsatisfied judgment or order for payment of money obtained against him; he shall be guilty of a misdemeanour. (2) For the purpose of paragraph (b) of subsection (l), it is hereby declared that if any person who has been adjudged bankrupt, or in respect of whose estate a receiving order has been made, has with intent to defraud his creditors or any of them caused or connived at the levying of any execution against his property he shall be deemed to have made a transfer of or charge on, his property. Bankrupt guilty of gambling, etc.

141. Any person who has been adjudged bankrupt, or in respect of whose estate a receiving order has been made, shall be guilty of a misdemeanour, if, having been engaged in any trade or business, and having outstanding at the date of the receiving order any debts contracted in the course and for the purposes of such trade or business(a) he has, within two years prior to the presentation of the bankruptcy petition, materially contributed to or increased the extent of his insolvency, by gambling or by rash and hazardous speculations, and such gambling or speculations are unconnected with his trade or business; or (b) he has, between the date of the presentation of the petition and the date of the receiving order, lost any part of his estate by such gambling or rash and hazardous speculations as aforesaid; or (c) on being required by the official receiver at any time, or in the course of his public examination by the court, to account for the loss of any substantial part of his estate incurred within a period of a year next preceding the date of the presentation of the bankruptcy petition, or between that date and the date of the receiving order, he fails to give a satisfactory explanation of the manner in which such loss was incurred: Provided that in determining for the purposes of this section whether any speculations were rash and hazardous, the financial position of the accused person at the time when he entered into the speculations shall be taken into consideration.

142. (1) Any person who has been adjudged bankrupt or in respect of Bankrupt whose estate a receiving order has been made shall be guilty of a failing to keep misdemeanour, if, having been engaged in any trade or business during proper accounts any period in the two years immediately preceding the date of the presentation of the bankruptcy petition, he has not kept proper books of account throughout that period and throughout any further period in which he was so engaged between the date of the presentation of the petition and the date of the receiving order, or has not preserved all books of account so kept: Provided that a person who has not kept or has not preserved such books of account shall not be convicted of an offence under this section if he proves that in the circumstances in which he traded or carried on business the omission was honest and excusable. (2) For the purposes of this section, a person shall be deemed not to have kept proper books of account if he has not kept such books or accounts as are necessary to exhibit and explain his transactions and financial position in his trade or business, including a book or books containing entries from day to day in sufficient detail of all cash received and cash paid, and, where the trade or business has involved dealings in goods, statements of annual stock-takings, and accounts of all goods sold and purchased, showing the goods and the buyers and sellers thereof in sufficient detail to enable those goods and those buyers and sellers to be identified, except that it shall not be necessary to record the name and address of each customer and the article sold in the case of goods sold by way of retail trade to the actual consumer for cash at a price not lower than cost. 143. If any person who is adjudged bankrupt, or in respect of whose estate a receiving order has been made, after the presentation of a bankruptcy petition by or against him or within six months before such presentation, quits Zambia and takes with him, or attempts or makes preparations to quit Zambia and take with him, any part of his property to the amount of forty kwacha or upwards, which ought by law to be divided amongst his creditors, he shall (unless he proves that he had no intent to defraud) be guilty of felony. 144. If any creditor, or any person claiming to be a creditor, in any bankruptcy proceedings, makes any false claim, or any proof, declaration or statement of account, which is untrue in any material Bankrupt absconding with property

False claim, etc.

particular, he shall be guilty of a misdemeanour unless he proves that he had no intent to defraud. 145. Where a debtor has been guilty of any criminal offence, he shall not be exempt from being proceeded against therefor by reason that he has obtained his discharge or that a composition or scheme of arrangement has been accepted or approved or that the adjudication of bankruptcy has been annulled. General penaltyGeneral penalty 146. A person guilty of an offence declared to be a felony or misdemeanour under this Act in respect of which no special penalty is imposed by this Act shall be liable on conviction to imprisonment for a term not exceeding two years. 147. In a charge for an offence under this Act it shall be sufficient to Form of charge set forth the substance of the offence charged in the words of this Act specifying the offence, or as near thereto as circumstances admit, without alleging or setting forth any debt, act of bankruptcy, trading, adjudication, or any proceedings in, or order, warrant or document of, the court acting under this Act or any enactment referred to in the Third Schedule. 148. A statement or admission made by any person in any compulsory examination or deposition before any court on the hearing of any matter in bankruptcy shall not be admissible as evidence against that person in any proceeding in respect of any of the felonies referred to in sections three hundred and twenty-four and three hundred and twenty-five of the Penal Code. companies Evidence as to frauds by directors and officers of corporations or companies Cap. 87 Criminal liability after discharge or composition

PART IX PROVISIONS COUNTRIES FOR RECIPROCITY WITH OTHER

149. Where the Attorney-General is satisfied that the legislature of any Declaration of

other country has enacted provisions for reciprocity in bankruptcy reciprocating which in that country have the like effect as the provisions contained in countries and this Part, he may, by statutory order, declare such country to be a courts reciprocating country, and the court thereof having jurisdiction in bankruptcy a reciprocating court for the purposes of this Act, and the provisions of this Part shall then apply to all bankruptcy proceedings subsequently instituted in the declared country against a debtor having property in Zambia. 150. Where a receiving order or order of adjudication or any appointment of a special manager or interim receiver has been made in any reciprocating country in bankruptcy proceedings against a debtor having property in Zambia, such order or appointment shall, subject to the other provisions of this Part, have the like effect as if it had been made in bankruptcy proceedings against the debtor in Zambia, and the debtor and his creditors shall be deemed to be in the same position and have the same rights and privileges, and be subject to the same disqualifications, restrictions, obligations and liabilities, in every respect as if such order or appointment had been made under this Act. 151. Where an order of adjudication is made by a reciprocating court, the property of the bankrupt situated in Zambia shall, by virtue of such order, vest in the person from time to time discharging the office of trustee of the property of the bankrupt in the reciprocating country, in the same manner as if the order of adjudication and the appointment of trustee had been made in Zambia, and the superintendence of such trustee shall continue to be exercised by the committee of inspection appointed in the reciprocating country or, if there be no such committee, by the reciprocating court. 152. The official receiver, interim receiver, special manager or trustee of a reciprocating country officiating in bankruptcy proceedings against a debtor having property in Zambia shall, subject to the control of the court by which he is appointed, be solely responsible for conducting those proceedings, and managing the affairs of the debtor or bankrupt within Zambia, and for such purposes shall, each in his respective capacity, have the same powers, rights, duties, obligations and liabilities as if he had derived his authority under this Act, and in any such proceedings where by this Act a debtor, creditor or other person interested is required to do any act at the direction of the official receiver, interim receiver, special manager or trustee, or is permitted by this Act to move in any matter in connection with such proceedings, every such debtor, creditor or person interested shall do such act at the Effect of receiving order, etc., made by reciprocating court against debtor with property in Zambia

Vesting of bankrupt's property in trustee appointed in reciprocating country

Powers of official receiver, etc., appointed in reciprocating country

direction of, and in all such matters treat and negotiate with or proceed against, the official receiver, interim receiver, special manager or trustee, as the case may be, of the reciprocating country, except in so far as any such official may have delegated his authority to the official receiver of Zambia as his agent in the manner hereinafter provided. 153. Every official receiver, interim receiver, special manager or trustee of or appointed in a reciprocating country officiating in bankruptcy proceedings against a debtor having property in Zambia may require the official receiver of Zambia to act as his agent either in regard to any specific matter, or generally to take all such steps as may be lawful under this Act, for the discovery, seizure, protection, disclaimer or realisation of any property of the bankrupt situated within Zambia, and in such event it shall be the duty of the official receiver of Zambia to act accordingly. 154. (1) Every request to act as agent as aforesaid shall be made in the manner prescribed under this Act, and shall be gazetted, and as from the date of such request and without further formality or authority the official receiver shall, as regards the debtor or bankrupt and his property and creditors situated in Zambia and for the purposes for which he is authorised, have the same rights, powers and duties as are conferred under the provisions of this Act upon the official receiver, interim receiver, special manager or trustee, as the case may be: Provided that nothing herein contained shall confer on the official receiver any interest or title in any such property otherwise than as an agent as aforesaid. (2) On the receipt of the prescribed request, the official receiver shall file with the registrar of the court the original, or a properly authenticated copy, of the request, and upon such filing the court shall take judicial notice of the appointment as agent under the provisions of this Part. (3) Notwithstanding the provisions of subsection (1), the official receiver may, in any case in which it is made to appear to him that immediate action is desirable, commence discharging his duties as agent as aforesaid in any manner applicable to the circumstances, if upon receipt of a telegraphic or other information he is satisfied thatOfficial receiver to act as agent of official receiver etc., of reciprocating country

Mode of requesting official receiver to act as agent

(a) bankruptcy proceedings have been instituted in a reciprocating country against a debtor having property in Zambia; and (b) the prescribed request for him to act has been signed and despatched; and (c) he has been indemnified against all costs, charges and expenses to be incurred by him. (4) Unless the contrary intention appears, every request to act as agent sent to the official receiver of Zambia shall be deemed to permit him to delegate at his discretion the powers and duties vested in him as such agent to any deputy or assistant official receiver appointed in pursuance of this Act. 155. It shall be the duty of the official receiver of Zambia to remit the Duties of proceeds of the realisation of the property of the bankrupt, and all other official receiver money of the estate coming into his hands as such agent as aforesaid, to acting as agent the person for whom he is acting, or as such person may direct, after deducting such expenses as may have been properly incurred by him; and the distribution among the creditors of all such money shall be carried out in accordance with the law of the reciprocating country in which the adjudication order was made: Provided that the provisions of this section shall not be in derogation of any law. 156. Where a receiving order or an order of adjudication has been Transmission of made in a reciprocating country and the official receiver in Zambia is proofs of debt acting as agent in the manner hereinbefore provided, proofs of debts contracted by the debtor in Zambia may be filed with the official receiver of Zambia in the form prescribed by the law of such reciprocating country, and in every such case it shall be his duty to receive, deal with and forward, in the manner prescribed by rules made under this Part, such proofs to the official receiver or trustee, as the case may be, in such reciprocating country. 157. If, on the application of the official receiver or any creditor or other person interested, it appears to the court that bankruptcy proceedings have been instituted in a reciprocating court against a Power of court to make orders under sections

debtor having property situated in Zambia, the court may, notwithstanding that no such proceedings have been instituted in Zambia, exercise as regards the person, property and affairs of the debtor all the powers conferred by sections eleven and twenty-five as may in the circumstances be applicable. 158. Any order, warrant or search warrant made or issued by a reciprocating court shall be enforced by the court in Zambia in the same manner in all respects as if such order, warrant or search warrant had been made or issued by itself. 159. Subject to the other provisions of this section, a reciprocating court shall have sole jurisdiction in all matters in or arising out of any bankruptcy proceedings taken before such court against a debtor having property in Zambia, and no court in Zambia shall entertain any suit, application or other matter arising in or out of such proceedings, except(a) upon the institution of any proceedings by or against the official receiver of Zambia in respect of any matters within the scope of his authority in the capacity of agent as aforesaid; (b) in the case of any civil suit or proceedings within the ordinary civil jurisdiction of such court by or against the official receiver, interim receiver, trustee or special manager of or appointed in a reciprocating country; (c) upon the institution of any proceedings affecting the property of the debtor or bankrupt situated in Zambia; (d) upon the receipt of a request to act in aid of or be auxiliary to such reciprocating court; (e) for the public examination of the debtor in regard only to his property situated within Zambia or his dealings with any person ordinarily resident or carrying on business in Zambia: Provided that such public examination shall not be held until the public examination before the reciprocating court shall have been concluded or adjourned sine die; (f) for the exercise of powers under Part VIII in relation only to bankruptcy offences alleged to have been committed within Zambia; (g) upon the institution of any proceedings for or arising out of the enforcement or execution of any order, warrant or search warrant made or issued by a reciprocating court; or (h) upon an application for the exercise of the powers conferred on the court by sections eleven, twenty-five, twenty-six and fifty-four.

11 and 25

Enforcement of warrants of reciprocating court Limitation on powers of court to entertain proceedings

160. (1) For the purposes of this section, "concurrent bankruptcy proceedings" means bankruptcy or insolvency proceedings instituted concurrently against the same debtor in any two or more reciprocating countries, one of which may or may not be Zambia. (2) Where concurrent bankruptcy proceedings have been instituted affecting property in Zambia, all such property shall vest in the trustee appointed in the country where the order of adjudication first is made; but if two or more such orders bear the same date or if for any reason no such adjudication order is made, then such property shall vest in or be administered by the trustee or receiver of the country where the receiving order first is made. (3) In any case where concurrent bankruptcy proceedings have been instituted in Zambia and, in pursuance of subsections (2) and (4), the property of the debtor or bankrupt situated in Zambia vests in or is administered by a trustee or receiver in a reciprocating country, the court shall rescind its receiving order and annul its order of adjudication, if made, or dismiss the petition upon such terms, if any, as the court may think fit; but the rescission of a receiving order or an annulment of adjudication under this subsection shall not invalidate any acts lawfully done by the receiver or trustee of Zambia or any other person lawfully acting under the authority of either of them. (4) Notwithstanding the other provisions of this section, in any case where concurrent bankruptcy proceedings have been instituted in Zambia, the court may, after such inquiry and reference to such reciprocating courts as it deems fit, order that the property of the debtor situated in Zambia shall vest in or be administered by a trustee or receiver in Zambia or in some reciprocating country other than that determined under the provisions of subsection (2) if, upon an application by the official receiver or any creditor or other person interested it appears that a majority of the creditors in number and in value are resident in Zambia, or such other reciprocating country, and that from the situation of the property of the debtor or bankrupt or other causes his estate and effects may be more conveniently administered, managed and distributed in Zambia or such other reciprocating country.

Concurrent bankruptcies

161. (1) Where a receiving order or an order of adjudication is made in Power of Zambia against a debtor or bankrupt having property situated in a official

reciprocating country and where, under the provisions of this Act, the property of the debtor or bankrupt is administered by or vested in the official receiver, or a trustee, of or appointed in Zambia, it shall be the duty of the official receiver or such trustee and any interim receiver or special manager appointed in pursuance of this Act to take all such steps as may be lawful in any reciprocating country for the proper administration of any property of the debtor or bankrupt situated in such country, and at his discretion and without further authority to request in the prescribed manner any bankruptcy official in such country empowered in that behalf to act as his agent either generally or for any specific purpose, and to give such directions and to publish such notices and to do all such things in the reciprocating country as may be lawful for the administration of the estate. (2) Unless for any reason the contrary intention is expressed, every request sent to a bankruptcy official in a reciprocating country requiring him to act as an agent as aforesaid shall contain a consent that he may assign the powers and duties vested in him as such agent to his deputy or any officer ordinarily authorised to act for him in the reciprocating country. (3) Where, in any proceedings mentioned in subsection (1), the official receiver, interim receiver, special manager or trustee has completed and despatched to a reciprocating country a request to a bankruptcy official therein to act as his agent as aforesaid, and where the circumstances of the case so require, he may request such bankruptcy official in the reciprocating country by telegram or otherwise to act as agent until such time as the prescribed request arrives in the ordinary course of post, provided that he undertakes to indemnify such bankruptcy official against any costs, charges and expenses which the latter may incur in acting as such agent as aforesaid.

receiver, etc. to require official receiver in reciprocating country to act as his agent

162. (1) The Chief Justice may, by statutory instrument, make rules for Power to make the purpose of carrying into effect all or any of the objects of this Part, rules under Part and, in addition and for such purpose, shall have power to make rules IX extending or varying the time limited under this Act or any general rules made under section one hundred and nineteen, for the doing of any act or taking any proceeding, in so far as such limitation of time affects persons ordinarily resident or carrying on business in a reciprocating country who are or may be interested in any bankruptcy proceedings in Zambia against a debtor having property in such reciprocating country:

Provided that no rules made under the powers conferred by this subsection shall come into force until the Chief Justice, by statutory notice, declares himself satisfied that the rule-making authorities in reciprocating countries have made rules having the like effect within their respective countries. (2) Notwithstanding the provisions of subsection (1), the court may in respect of any particular matter exercise its general powers of extension of time under subsection (4) of section one hundred and one in favour of a person ordinarily residing or carrying on business in a reciprocating country who is interested in bankruptcy proceedings instituted in Zambia against a debtor having property in such reciprocating country.

PART X REPEALS 163. (1) The British Acts set forth in the Third Schedule are hereby repealed in so far as they apply to Zambia. (2) This Act shall apply to proceedings commenced under any enactment referred to in the Third Schedule and pending at the commencement of this Act, as if commenced under this Act. (3) The provisions of this Act shall apply to, and in respect of, the property of a debtor against whom a receiving order has been made, or who has been adjudged bankrupt, under any enactment referred to in the Third Schedule, and to, and in respect of, such debtor, as if such receiving order had been made, or such debtor had been adjudged bankrupt, under the provisions of this Act: Provided that(i) no person shall be prosecuted for an offence committed before the commencement of this Act unless such offence was a misdeameanour or felony under any enactment referred to in the Third Schedule; Repeals and savings

(ii)

in the distribution of the property of any such debtor no creditor shall receive a lesser payment than he would have received if this Act had not been passed; but, notwithstanding the provisions of this proviso, section one hundred and thirty-seven shall be deemed always to have been in force.

(4) Until revoked or altered under the provisions of this Act, any fees Cap. 27 prescribed and any general rules and orders made under the High Court Act and the Bankruptcy Act, 1914, of the United Kingdom, which are in force at the commencement of this Act, shall continue in force, so far as the same remain applicable, and shall have effect as if made under this Act. FIRST SCHEDULE (Section 15 (2))

MEETINGS OF CREDITORS
First Meeting of Creditors 1. The official receiver shall summon the first meeting of creditors as soon as may be convenient after the date of the receiving order by giving not less than two clear days' notice of the time and place thereof in the Gazette. 2. The official receiver shall also, as soon as practicable, send to each creditor mentioned in the debtor's statement of affairs, a notice of the time and place of the first meeting of creditors, but the proceedings at the first meeting shall not be invalidated by reason of any such notice not having been sent or received before the meeting. 3. The meeting shall be held at such place as is, in the opinion of the official receiver, most convenient for the majority of the creditors. Subsequent Meetings of Creditors 4. The official receiver or the trustee may at any time summon a meeting of creditors, and shall do so whenever so directed by the court, or so requested by a creditor in accordance with the provisions of this Act. 5. Meetings subsequent to the first meeting shall be summoned by sending notice of the time and place thereof to each creditor at the address given in his proof, or if he has not proved, at the address given in the debtor's statement of affairs, or at such other address as may be known to the person summoning the meeting.

Provisions Applicable to all Meetings of Creditors 6. The official receiver, or some person nominated by him, shall be the chairman at the first meeting. The chairman at subsequent meetings shall be such person as the meeting shall by resolution appoint. 7. A person shall not be entitled to vote as a creditor at the first or any other meeting of creditors, unless he has duly proved a debt provable in the bankruptcy to be due to him from the debtor, and the proof has been duly lodged with the official receiver or trustee at least one clear day before the time appointed for the meeting or lodged with the chairman at such meeting prior to the proof being used for the purpose of voting. 8. A creditor shall not vote at any such meeting in respect of any unliquidated or contingent debt, or any debt the value of which is not ascertained. 9. For the purposes of voting, a secured creditor shall, unless he surrenders his security, state in his proof the particulars of his security, the date when it was given, and the value at which he assesses it, and shall be entitled to vote only in respect of the balance (if any) due to him, after deducting the value of his security. If he votes in respect of his whole debt he shall be deemed to have surrendered his security, unless the court on application is satisfied that the omission to value the security has arisen from inadvertence. 10. A creditor shall not vote in respect of any debt on, or secured by, a current bill of exchange or promissory note held by him, unless he is willing to treat the liability to him thereon of every person who is liable thereon antecedently to the debtor, and against whom a receiving order has not been made, as a security in his hands, and to estimate the value thereof, and for the purposes of voting, but not for the purposes of dividend, to deduct it from his proof. 11. It shall be competent to the trustee or to the official receiver, within twenty-eight days after a proof estimating the value of a security as aforesaid has been made use of in voting at any meeting, to require the creditor to give up the security for the benefit of the creditors generally on payment of the value so estimated, with an addition thereto of twenty per centum: Provided that where a creditor has put a value on such security, he may, at any time before he has been required to give up such security as aforesaid, correct such valuation by a new proof, and deduct such new value from his debt, but in that case such addition of twenty per centum shall not be made if the trustee requires the security to be given up. 12. If a receiving order is made against one partner of a firm, any creditor to whom that partner is indebted jointly with the other partners of the firm, or any of them, may prove his debt for the purpose of voting

at any meeting of creditors, and shall be entitled to vote thereat. 13. The chairman of a meeting shall have power to admit or reject a proof for the purpose of voting, but his decision shall be subject to appeal to the court. If he is in doubt whether the proof of a creditor should be admitted or rejected he shall mark the proof as objected to and shall allow the creditor to vote, subject to the vote being declared invalid in the event of the objection being sustained. 14. A creditor may vote either in person or by proxy. 15. Every instrument of proxy shall be in the prescribed form, and shall be issued by the official receiver, or after the appointment of a trustee, by the trustee. 16. General and special forms of proxy shall be sent to the creditors, together with a notice summoning a meeting of creditors, and neither the name nor the description of the official receiver, or of any other person, shall be printed or inserted in the body of any instrument of proxy before it is so sent. 17. A creditor may give a general proxy to any person or persons. A proxy given to more than one person may be exercised by any one of them and a proxy given to persons by a firm name may be exercised by any one of the partners of that firm or by any employee thereof authorised by a partner in that behalf. 18. A creditor may give a special proxy to any person or persons to vote at any specified meeting or adjournment thereof on all or any of the following matters: (a) for or against any specific proposal for a composition or scheme of arrangement; (b) for or against the appointment of any specified person as trustee subject or not to any specified rate of remuneration, or as member of the committee of inspection, or for or against the continuance in office of any specified person as trustee or member of a committee of inspection; (c) on all questions relating to any matter, other than those above referred to, arising at any specified meeting or adjournment thereof. A special proxy given to more than one person or to persons by a firm name may be exercised as prescribed by rule 17. 19. A proxy shall not be used unless it is deposited with the official receiver or trustee at least one clear day before the meeting at which it is to be used or deposited with the chairman at such meeting prior to the proxy being used for the purpose of voting. 20. Where it appears to the satisfaction of the court that any solicitation has been used by or on behalf of a trustee or receiver in obtaining proxies, or in procuring the trusteeship or receivership, execpt by the direction of a meeting of creditors, the court shall have power, if

it thinks fit, to order that no remuneration shall be allowed to the person to whom or on whose behalf such solicitation may have been exercised, notwithstanding any resolution of the committee of inspection or of the creditors to the contrary. 21. A creditor may appoint the official receiver to act as his general or special proxy. 22. The chairman of a meeting may, with the consent of the meeting, adjourn the meeting from time to time and from place to place. 23. A meeting shall not be competent to act for any purpose except the election of a chairman, the admission or rejection of proofs of debt for the purpose of voting and the adjournment of the meeting, unless there are present, or represented thereat, at least three creditors entitled to vote, or all the creditors entitled to vote if their number does not exceed three. 24. If within half an hour from the time appointed for the meeting a quorum of creditors is not present or represented, the meeting shall be concluded unless there be a resolution to adjourn. 25. The chairman of every meeting shall cause minutes of the proceedings at the meeting to be drawn up and the minutes shall be signed by him or by the chairman of the next ensuing meeting. 26. No person acting either under a general or special proxy shall vote in favour of any resolution which would directly or indirectly place himself, his partner or employer, in a position to receive any remuneration or other benefit out of the estate of the debtor otherwise than as a creditor rateably with the other creditors of the debtor: Provided that where any person holds special proxies to vote for the appointment of himself as trustee he may use the said proxies and vote accordingly. 27. The vote of the trustee or of his partner or of a person in his regular employment, either as creditor or as proxy for a creditor, shall not be reckoned in the majority required for passing any resolution affecting the remuneration or conduct of the trustee.

SECOND SCHEDULE (Section 35)

PROOF OF DEBTS
Proof in Ordinary Cases

1. A debt may be proved by delivering or sending through the post in a prepaid letter to the official receiver, or, if a trustee has been appointed, to the trustee, an affidavit verifying the debt. 2. The affidavit may be made by the creditor himself, or by some person authorised by or on behalf of the creditor. If made by a person so authorised, it shall state his authority and means of knowledge. 3. The affidavit shall contain, or refer to, a statement of account showing the particulars of the debt, and shall specify the vouchers, if any, by which the same can be substantiated. The official receiver or trustee may at any time call for the production of the vouchers. 4. The affidavit shall state whether the creditor is or is not a secured creditor, and if it is found at any time that the affidavit made by or on behalf of a secured creditor has omitted to state that he is a secured creditor, the creditor shall surrender his security to the official receiver or trustee for the general benefit of the creditors, unless the court on application is satisfied that the omission has arisen from inadvertence, and in that case the court may allow the affidavit to be amended upon such terms as to the repayment of any dividends or otherwise as the court may consider to be just. 5. A creditor shall bear the cost of proving his debt, unless the court otherwise specially orders. 6. Every creditor who has lodged a proof shall be entitled to see and examine the proofs of other creditors at or before the first meeting, and at all other reasonable times. 7. A creditor proving his debt shall deduct therefrom all trade discounts, but he shall not be compelled to deduct any discount, not exceeding five per centum on the net amount of his claim, which he may have agreed to allow for payment in cash. Proof by Secured Creditors 8. If a secured creditor realises his security, he may prove for the balance due to him, after deducting the net amount realised. 9. If a secured creditor surrenders his security to the official receiver or trustee for the general benefit of the creditors, he may prove for his whole debt. 10. If a secured creditor does not either realise or surrender his security, he shall, before ranking for dividend, state in his proof the particulars of his security, the date when it was given and the value at which he assesses it, and shall be entitled to receive a dividend only in respect of the balance due to him after deducting the value so assessed. 11. (1) Where the security is so valued the trustee may at any time redeem it on payment to the creditor of the assessed value.

(2) If the trustee is dissatisfied with the value at which the security is assessed, he may require that the property comprised in any security so valued be offered for sale at such times and on such terms and conditions as may be agreed on between the creditor and the trustee, or as, in default of such agreement, the court may direct. If the sale be by public auction, the creditor or the trustee on behalf of the estate, may bid or purchase. (3) The creditor may at any time, by notice in writing, require the trustee to elect whether he will or will not exercise his power of redeeming the security or requiring it to be realised, and if the trustee does not, within six months after receiving the notice, signify in writing to the creditor his election to exercise the power, he shall not be entitled to exercise it; and the equity of redemption, or any other interest in the property comprised in the security which is vested in the trustee, shall vest in the creditor, and the amount of his debt shall be reduced by the amount at which the security has been valued. 12. Where a creditor has so valued his security, he may at any time amend the valuation and proof on showing to the satisfaction of the trustee or the court that the valuation and proof were made bona fide on a mistaken estimate or that the security has diminished or increased in value since its previous valuation; but every such amendment shall be made at the cost of the creditor, and upon such terms as the court shall order, unless the trustee shall allow the amendment without application to the court. 13. Where a valuation has been amended in accordance with rule 12, the creditor shall forthwith repay any surplus dividend which he may have received in excess of that to which he would have been entitled on the amended valuation, or, as the case may be, shall be entitled to be paid out of any money, for the time being available for dividend, any dividend or share of dividend which he may have failed to receive by reason of the inaccuracy of the original valuation, before that money is made applicable to the payment of any future dividend, but he shall not be entitled to disturb the distribution of any dividend declared before the date of the amendment. 14. If a creditor after having valued his security subsequently realises it, or if it is realised under the provisions of rule 11, the net amount realised shall be substituted for the amount of any valuation previously made by the creditor, and shall be treated in all respects as an amended valuation made by the creditor. 15. If a secured creditor does not comply with the foregoing rules, he shall be excluded from a share in any dividend. 16. Subject to the provisions of rule 11, a creditor shall in no case receive more than one hundred ngwee in the kwacha.

Proof in Respect of Distinct Contracts 17. If a debtor was, at the date of the receiving order, liable in respect of distinct contracts as a member of two or more distinct firms, or as a sole contractor, and also as a member of a firm, the circumstances that the firm are in whole or in part composed of the same individuals, or that the sole contractor is also one of the joint contractors, shall not prevent proof in respect of the contracts, against the properties respectively liable on the contracts. Periodical Payments 18. When any rent or other payment falls due at stated times, and the receiving order is made at any time other than one of those times, the person entitled to the rent or payment may prove for a proportionate part thereof up to the date of the order as if the rent or payment accrued due from day to day. Interest 19. On any debt or sum certain, payable at a certain time or otherwise whereon interest is not reserved or agreed for, and which is overdue at the date of the receiving order and provable in bankruptcy, the creditor may prove for interest at a rate not exceeding four per centum per annum to the date of the order from the time when the debt or sum was payable, if the debt or sum is payable by virtue of a written instrument at a certain time, and if payable otherwise, then from the time when a demand in writing has been made giving the debtor notice that interest will be claimed from the date of the demand until the time of payment. Debt Payable at a Future Time 20. A creditor may prove for a debt not payable when the debtor committed an act of bankruptcy as if it were payable presently, and may receive dividends equally with the other creditors, deducting only thereout a rebate of interest at the rate of five per centum per annum computed from the declaration of a dividend to the time when the debt would have become payable according to the terms on which it was contracted. Admission or Rejection of Proofs 21. The trustee shall examine every proof and the grounds of the debt, and in writing admit or reject it, in whole or in part, or require further evidence in support of it. If he rejects a proof, he shall state in writing to the creditor the grounds of the rejection.

22. If the trustee thinks that a proof has been improperly admitted, the court may, on the application of the trustee, after notice to the creditor who made the proof, expunge the proof or reduce its amount. 23. If a creditor is dissatisfied with the decision of the trustee in respect of a proof, the court may, on the application of the creditor, reverse or vary the decision. 24. The court may also expunge or reduce a proof upon the application of a creditor, or the debtor, if the trustee declines to interfere in the matter. Miscellaneous 25. For the purpose of any of his duties in relation to proofs, the trustee may administer oaths and take affidavits. 26. The official receiver, when no trustee has been appointed or during any vacancy in the office of trustee, shall have all the powers of a trustee with respect to the examination, admission and rejection of proofs, and any act or decision of his in relation thereto shall be subject to the like appeal.

THIRD SCHEDULE (Section 163)

ENACTMENTS REPEALED
The Bankruptcy Act, 1914, of the United Kingdom. The Bankruptcy (Amendment) Act, 1926, of the United Kingdom.
SUBSIDIARY LEGISLATION

SECTION 121-THE BANKRUPTCY (COSTS) RULES.

Statutory Instrument No. 178 of 1990 Act No.13 of 1994

1. (1) These Rules may be cited as the Bankruptcy (Costs) Rules.

Title and application

(2) These Rules shall apply in respect of any business done in any matter pending on the date of these Rules or duties performed after the publication of these Rules. 2. Where in respect of any business done or duties performed under the Act, costs are to be allowed or taxed, such costs shall be in accordance with the scale of costs set out in the Schedule to these Rules.

Bankruptcy scale of costs

SCHEDULE (Rule 2) PART I

SCALE OF COSTS OF PETITIONING DEBTOR

1. Instructions for petition, search for prior petition drawing and copy petition and attesting same; attending, presentation hearing thereof when receiving order made; drawing and copy receiving order; attending Official Receiver giving him all necessary information; attending upon debtor's preliminary examination and upon public examination; drawing bill of costs and copy; attending lodging bill, obtaining appointment to tax and necessary notices thereof; attending taxation, vouching, completing and obtaining Taxing Officer's allocatur; letters, messengers and telephone calls: (a) Where the assets are certified as not likely to exceed K5,000 .. .. .. . .188 (b) Where the assets are certified as likely to exceed K5,000 . . .. .. .. . .1,875 NOTE:-The allowances for Item 1 (a) or 1 (b) to be made in accordance with the certificate or the Official Receiver as to the value which the assets are likely to realise, and the certificate must be produced to the Taxing Officer where a composition is accepted and confirmed by the court the value of the assets shall be considered to be the amount required for the purpose

of the composition. 2. Drawing and copy of adjudication upon application by a debtor . . .. .. . . . . 38 3. Where the advocate practises at a distance from the court and employs an agent upon presentation and hearing of the petition, an additional allowance may be made for .. .. . .53 General Note to Part I No charges other than those included in Part I of this scale may be allowed unless the Taxing Officer considered that by reason of special circumstances additional items should be allowed.

PART II

DEBTOR'S COSTS WHERE BANKRUPTCY NOTICE SET ASIDE AND ON DISMISSAL OF PETITION
4 Instructions for application to set aside bankruptcy notice and for affidavit or counter-claim, including perusal and consideration of the bankruptcy notice; drawing affidavit, copy and attending to file; drawing application for appointment to hear (when requisite) and attending obtaining 1,250 directions thereon. . .. .. .. .. .. .. .. .. . . 270 5. (a) Attending court on hearing of application when order made setting aside bankruptcy notice; drawing any attending to pass . . .. .. .. .. .. .. . . 83 (b) Attending court when hearing of application adjourned; drawing and copy order and attending to pass . . . . .. .. .. .. .. .. .. .. . . 75 6. Instructions to show cause on hearing of petition

..

including perusing and considering petition and attending upon the debtor obtaining information; drawing and copy notices to show cause and attending to file; two fair copies notice and service thereof .. .. .. .. . . 135

7. (a) Attending court on hearing of petition dismissed . . .. .. .. .. . . 38

(b)Attending court on hearing of petition adjourned .. .. .. .. . . 38

..

8. Drawing and copy order and attending to pass . . .. .. .. .. . . 30

..

9. Letters, messengers and telephone calls not otherwise provided for-not to exceed . . . . 68 10. In any special case, costs may, at the discretion of the Taxing Officer be allowed(a) in relation to items not mentioned in this scale; (b) of an amount higher than that prescribed by this scale. General Note to Part II The debtor shall be allowed his travelling expenses and of paragraph 16 of Part V of this scale.

PART III

SCALE OF COSTS OF PETITIONING CREDITORS

11. Instructions for bankruptcy notice, drawing same, engrossing and tow fair copier; preparing request to issue, filing, sealing and issueing notice .. .. .. .. . .150 12. Drawing and engrossing affidavit of service of bankruptcy notice, marking exhibit

attending. . ..

.. ..

.. ..

.. ..

.. ..

.. ..

.. 38

13. Instructions for bankruptcy petition including where necessary examining particulars of petitioning creditors account . . .. .. .. .. ..

NOTE: Where the act of bankruptcy is other than non compliance with a bankruptcy notice, items for work necessarily and properly done in proof thereof, may be allowed at the discretion of the Taxing Master. 14. Drawing bankruptcy petition, engrossing same, two copies and attesting signatures of the petitioning creditors . . .. .. .. .. .. .. .. .. .. . . 38 15. Drawing and engrossing affidavit verifying petition, marking exhibit and attending petitioner to be sworn . . . . .. .. .. .. .. .. .. .. . . 38 16. Attending to search for prior petition and for compliance with bankruptcy notice; affidavit of search, including drawing, engrossing and attending swearing . . .. .. .. . . 53 17. Attending Official Receiver with deposit; attending presentating petition and drawing order for hearing same, attending to filing all affidavits . . .. .. .. .. .. . . 135 18. Drawing and engrossing affidavit of service of petition marking exhibit, attending swearing and filing same . . .. .. .. .. .. .. .. .. . . 38 19. Drawing and engrossing affidavit of petitioning Creditors' debt and attending swearing and filing same . . .. .. .. .. .. .. .. .. .. .. . . 38 20. Attending hearing of petition when receiving order made; drawing receiving order copy and attending to pass . . .. .. .. .. .. .. .. .. . . 105 21. Attending Official Receiver upon making of receiving order giving him all necessary information . . .. .. .. .. .. ..

..

..

..

..

. . 98

22. Attending hearing of petition when adjournment order drawing order or adjournment and copy of file . . .. .. .. .. .. .. .. .. .. .. . . 63 NOTE-More than one attendance on the hearing of a bankruptcy petition shall not be allowed unless certified by the court at the time. 23. Drawing bill of costs and copy for taxation; attending lodging bill, obtaining appointment to tax and necessary thereof; attending taxation, vouching, completing and obtaining Taxaing Officer's allocatur .. .. .. .. .. .. .. .. .. . . 188

..

24. Where the advocate practises at a distance from the court and employs an agent upon presentation and hearing of the petition, an additional allowance may be made not exceeding . . 38 NOTE:-Travelling expenses, not exceeding this sum may otherwise be allowed. 25. For service of a bankruptcy notice of petition, an allowance shall be made in accordance with the provisions of Part IV of this scale. 26. Letters, messengers and telephone calls not otherwise provided for-not to exceed . .36 General Notes of Part III 1. No charges other than those included in Part III of this scale may be allowed unless the Taxing Master considers that by reason of the petition being opposed or other circumstances, additional items should be allowed. 2. The petition creditor's advocate may be allowed all proper charges at the rate specified in the scale(a) for work necessarily and usefully done between the presentation of the petition and the date of receiving order in the interest of the creditors generally and for the protection or benefit of the estate; and (b) in exceptional cases for special services rendered prior to the presentation of the petition in the interest of the creditor generally where the services have been of substantial advantage to the estate; if the Official Receiver certified that the work was necessary or useful, or, as the case may be, that the special services were of

substantial advantage. The Official Receiver's certificate may be endorsed at the foot of the bill of costs. PART IV

MISCELLANEOUS AND GENERAL COSTS

Instructions 27. For application for appointment of special manager and drawing same; obtaining assets of creditors; attending Official Receiver to lodge papers and to make application .. .. . .150 NOTE: No costs shall be allowed in respect of an unsuccessful application unless the Official Receiver certificates that such costs should be allowed 28. For application for appointment of interim receiver and drawing same; affidavit in support and attending to file; attending hearing of application when order made and drawing order; attending Official Receiver . . .. .. .. .. .. .. .. . . 225 NOTE: (1) The costs of further affidavits in support may be allowed at the discretion of the Taxing Officer. (2) The deposit is to be charged in the bill of costs. 29. For application for substantial service and drawing same; affidavit in support, attending making application when order made; attending drawing up order . . .. .. .. . . 83 30. For application to extend or abridge time and drawing same; attending making application when order made; attending drawing up order .. .. .. .. .. .. . . 68 31. For application to dispense with petitioning creditor's attendance on hearing and drawing same; attending making application when order made; attending drawing up order. . .. . .68 32. For hearing of any matter not otherwise provided for not to exceed. . .. .. .. 150

..

NOTE-This item is intended to cover the doing of any work, not otherwise provided for, necessarily or properly done in preparation for the hearing of any matter. 33. For case for opinion of Counsel .. .. .. .. .. . . 150 .. ..

Attendances 34. Of petitioning creditor's solicitor at public examination, where the court certifies that the attendance is necessary . . .. .. .. .. .. .. .. . . 75

..

35. Of petitioning creditor's advocate at first meeting of creditors .. .. .. . . 38 NOTE-This item may only be allowed if the Official Receiver certifies in writing that the attendance was necessarily in the interest of the authority of the Official Receiver. 36. At meeting of creditors (other than first meeting) when duly authorised and necessary . . 38

37. At meeting of committee of inspection when duly authorised and necessary . . .. . . 38

NOTE: To Items 36 and 37; when such attendance is special and unsually long, these items may be increased at the discretion of the Taxing Officer. 38. In chambers on hearing of any application where not otherwise provided for . . .. . .38

39. (a) In Court on hearing of any matter which is included in list of matters to be heard but on which hearing had not begun, per day .. .. .. .. .. .. .. . . 38

(b) in Court on hearing of any matter, per day . . .. .. .. .. . . 38

..

40. To lodge and to make application in chambers where not otherwise provided for .. . .53 41. To lodge and to make application for warrant, warrant of seizure or search warrant . . . . 53 NOTE: To Items 40 and 41; these items include filing of affidavits or other documents in support of application. 42. To instruct officer as to executing of warrant or warrant of seizure .. .. .. . . 17 43. On a deponent swearing or advocate or clerk deposing to any affidavit not otherwise provided for .. .. .. .. .. .. .. .. .. .. .. . . 17 44. To file affidavit or other document, where not otherwise provided for . . .. .. . . 17 45. Any other attendance not otherwise provided for (or such greater sum as the Taxing Officer in his discretion shall allow) . . .. .. .. .. .. .. .. .. . . 17 Drawing Documents 46. Commission or order for examination of witness abroad, per page or part thereof . . . . 30 47. Application to a Judge or Registrar, including copy .. .. .. .. . . 30 ..

48. Order made in court or other special order, per page or part thereof . . .. .. . . 30 49. Order not otherwise provided for, including copy to file and attending to enter .. . . 30 50. Proposal for scheme of arrangement or composition, per page or part thereof .. . . 30 51. Consent to receiving order and attending obtaining the debtor's signature . . .. . .53 52. Warrant, warrant of seizure or search warrant .. .. .. .. . . 30 ..

53. Any affidavit, notice of motion, report or other document not otherwise provided for, per page or part thereof . . .. .. .. .. .. .. .. .. .. . . 30 54. Any notice not otherwise provided for. . .. .. .. .. . . 17 .. ..

55. Brief or case for opinion of Counsel, per page or part thereof . .. .. .. . . 30 Perusal 56. Of any document not provided for or allowed under any other item, per page or part thereof. . .. .. .. .. .. .. .. .. .. .. .. . . 15 57. Copy of document-per page or part thereof . . .. .. .. .. . . 15 ..

58. Copy of document not otherwise provided for, per page or part thereof .. .. . .15 Service 59. Of bankruptcy notice or petition, or other document(a)if required to be served personally for each service .. .. .. .. . . 14 (b)if service by post authorised for each service .. .. .. .. .. . . 17 In addition to the amount allowed under paragraph (a) hereof, a kilometre allowance in respect of each kilometre after the first three kilometres between the place at which service is effected and the nearest place of business of the solicitor effecting it . .2 60. Where more than one attendence is necessary to effect service, or to ground an application for substituted service- not to exceed .. .. .. .. .. .. .. . . 15 Letters 61. Letters not included under any other item .. .. .. .. .. 8 or if long . . .. .. .. .. .. .. .. . . 15 or if similar . . .. .. .. .. .. .. .. .. 8 or if a circular letter. . .. .. .. .. .. .. .. 8 .. .. .. .. .. .. .. ..

62. Letters, messengers and telephone calls not provided for or allowed under any other idea not to exceed . . .. .. .. .. .. .. .. .. .. .. . . 150

PART V

GENERAL
1. Except as in this scale provided all costs properly incurred under the provisions of the Act of these Rules shall be allowed under the Schedule to the Legal Practitioners (Cost) Order. 2. Where, in the course of a bankruptcy administration, business is transacted in a court other than the Court having jurisdiction in the bankruptcy, the solicitor's remuneration therefor shall be in accordance with the scale in force for the time being in the court in which such business is transacted. 3. In respect of business connected with sales, purchases, leases, mortgages and other business, an advocate's remuneration shall be regulated by any general orders for the time being in force; provided that, in respect of the sale of mortgaged property the remuneration of the trustee's advocate shall be payable only out of the proceeds of the sale unless the committee of inspection by resolution setting out special reasons, authorises the remuneration to be paid out of the general estate. 4. Where the proceedings are opposed, and in other proper cases, the costs of the employment of Counsel may at the discretion of the Taxing Master, be allowed. 5. Court fees and other proper disbursements shall be allowed in addition to the remuneration provided in this scale. 6. Where the Court so orders and certifies, an extra allowance for length of sitting or other special reasons may be allowed. 7. On taxation, no payment shall be allowed unless the requisite vouchers are produced. 8. Bills of costs shall be written lengthwise distinguishing in separate columns out-of-pocket expenses from charges for work done. Dates shall be given for each item, but they shall not be written in the margin which is to be left clear for use on taxation and for filing. 9. The charge allowed for drawing any affidavit or other document shall include any copy made for the use of the advocate, his agent or for Counsel to settle. 10. Where the same advocate is employed for two or more persons having the same interest, and separate papers are delivered so Counsel or proceedings are taken by or for two or more such persons separately, the Taxing Officer shall consider on the taxation, whether between party and party or on common fund basis, wherther such separate papers or

proceedings were necessary or proper; and if he is of the opinion that any part of the costs occassioned thereby has been unnecessarily or improperly incurred, that part shall be disallowed. 11. A page means a sheet of A4 size. 12. In special cases where Counsel is not instructed to appear in Court and the practitioner acts as advocate, a charge by the practitioner for the preparation of minutes of fact or evidence for his own use may be allowed and in addition such charge for his attendance as the Taxing Officer may think first, having regard to the nature and importance of the case and the questions involved. 13. All fees, costs and allowances which are discretionary shall, unless otherwise provided, be allowed at the discretion of the Taxing Officer, who in the exercise of his discretion shall take into consideration other fees and allowances to Counsel and the advocate in respect of the work to which the allowance applies, the nature and importance of the matter, the amount involved, the interest of the parties, the estate of the bankrupt where the costs are to be paid out of such estate, the general conduct and cost of the proceedings and all other relevant circumstances. 14. (1) Any person who is dissatisfied with the allowance or disallowance by the Taxing Officer of the whole or any part of any times, may at any time within fourteen days after such allowance or disallowance has been made, or within such shorter period as the Taxing Officer may direct, bring before the Taxing Officer objections in writing to the allowance or disallowance setting out in a concise form a list of the items or parts thereof objected to, and grounds for the objections and may thereupon apply to the Taxing Officer to review the taxation. A copy of such objections shall be served upon such persons as the Taxing Officer shall direct. (2) Any person to whom a copy of the objections is delivered in accordance with the Taxing officer's directions may within fourteen days after delivery of the copy or such shorter period as may be fixed by the Taxing Officer deliver to the Taxing Officer answers in writing to the objections stating concisely the grounds on which he will oppose them. A copy of such answer shall be served upon such persons as the Taxing Officer shall direct. On the hearing of a review under this paragraph, any person to whom a copy of the objections was delivered shall be entitled to be heard in respect of any item to which the objections relate, notwithstanding that he did not deliver written answers to such objections. (3) Upon the application to review, the Taxing Officer shall reconsider any allowance or disallowance objected to, and may, if he thinks fit, receive further evidence in respect thereof and if so required by any person interested he shall state either in his certificate of taxation

or allocatur or by reference to the objection, the grounds for his decision and any special facts, or circumstances relating therein. A request under this paragraph must be made within fourteen days after the review or such shorter period as may be fixed by the Taxing Officer. 15. (1) Any person who is dissatisfied with the certificate or allocatur of the Taxing Officer as to any item or part of an item, or with the amount allowed in respect of any item which has been reconsidered may, within fourteen days after the date of the certificate or allocatur, or such longer time as the Court or Judge, or Taxing Officer at the time he signs his certificate or allocatur, may allow, apply to the Judge for an order to review the taxation of the items or part thereof, and the Judge may thereupon make such order as he thinks just. An application to the Judge under this paragraph may be made only if any person interested in the proceedings before the Taxing Officer requests such Taxing Officer to state the grounds for his decision in accordance with paragraph 11 (3). (2) The application shall be heard and determined by the Judge upon the evidence brought before the Taxing Officer and no further evidence shall be received unless the Judge otherwise directs. (3) Subject to the provisions of this paragraph, the cerificate or allocatur of the Taxing Officer shall be final and conclusive as to all matters which have not been objected to in the manner aforesaid. 16. The allowances to witnesses in bankruptcy proceedings shall be in accordance with those ordinarily made in the High Court. The petitioning creditor shall not be regarded as a witness on the hearing of the petition; he shall not be paid for loss of time, but may be allowed his expenses for travelling and subsistence. (As amended by Act No. 13 of 1994)

CHAPTER 83 THE PREFERENTIAL CLAIMS IN BANKRUPTCY ACT

ARRANGEMENT OF SECTIONS

Section 1. 2. 3. 4. Title Priority debts Discharge of debts Distress for rent

5.

Application of Act to a deceased insolvent

CHAPTER 83

PREFERENTIAL CLAIMS IN BANKRUPTCY

Act No. 9 of 1995

An Act to make provision with respect to preferential payments in bankruptcy; to give effect to the International Labour Conference Convention 173 Concerning the Protection of Workers' Claims in the event of the Insolvency of their Employer, Adopted by the Conference at its Seventy-ninth Session, at Geneva, on 23rd June, 1992, to which Zambia is a State Party; and to provide for matters connected with or incidential to the foregoing. [28th April, 1995]

1. This Act may be cited as the Preferential Claims in Bankruptcy Act. Short title

2. (1) Subject to this Act, in a bankruptcy there shall be paid in priority Priority debts to all other unsecured debts(a) all amounts due by way of wages or salary (whether or not earned wholly or in part by way of commission) accruing to any employee within the period of three months before the date of the receiving order; (b) all amounts due in respect of leave accruing to any employee within the period of two years before the date of the receiving order; (c) all amounts due in respect of any paid absence (not being leave) accruing to any employee within the period of three months before the date of the receiving order; (d) recruitment expenses or other amounts reimbursable under any contract of employment; (e) an amount equal to three months' wages or salary, by way of

severance pay, to each employee; (f) all amounts due in respect of workers' compensation under any written law relating to workers' compensation accrued before the date of the receiving order; (g) any tax, duty or rate payable by the bankrupt in respect of any period prior to the date of the receiving order whether or not payment has become due after that date; (h) all Government rents not more than five years in areas due to the Government on the date of the receiving order; and (i) all rates from the bankrupt to a local authority having become due and payable within the period of three years before the date of the receiving order. (2) Debts having priority shall rank as follows: (a) firstly, the debts referred to in paragraphs (a) to (f), inclusive of subsection (1); (b) secondly, the debts referred to in paragraphs (g) and (h) of subsection (1); and (c) thirdly, the debts referred to in paragraph (i) of subsection (1).

(3) Debts having the same priority shall rank equally between themselves, and shall be paid in full, unless the property of the bankrupt is insufficient to meet them, in which case they shall abate in equal proportions between themselves. (4) Where a payment has been made to any employee of the bankrupt on account of wages or salary out of money advanced by a person for that purpose, the person by whom the money was advanced shall, in the event of a bankruptcy, have a right of priority in respect of the money so advanced and paid up to the amount by which the sum in respect of which the employee would have been entitled to priority in the event of a bankruptcy has been diminished by reason of the payment, and shall have the same right of priority in respect of that amount as the employee

would have had if the payment had not been made. (5) Where the bankrupt is, under a contract of insurance entered into before the commencement of the bankruptcy, insured against liability to third parties, then, if any such liability is incurred by the bankrupt (either before or after the date of the receiving order) and an amount in respect of that liability is or has been received by the bankrupt or trustee in bankruptcy, from the insurer, the amount shall, after deducting any expenses of, or incidental to, getting the amount, be paid by the trustee in bankruptcy to the third party in respect of whom the liability was incurred to the extent necessary to discharge that liability or any part of that liability remaining undischarged in priority to all payments in respect of the debts referred to in subsection (1). (6) Notwithstanding anything in subsection (1)(a) paragraph (a) of that subsection shall not apply in relation to bankruptcy where the bankrupt has entered into a contract with an insurer in respect of any liability under any law relating to workmen's compensation; and (b) where a bankrupt has given security for the payment or repayment of any amount to which paragraph (f), (g), or (h) of that subsection relates, that paragraph shall apply only in relation to the balance of any such amount remaining due after deducting therefrom the net amount realised from the security. (7) Where, in any bankruptcy(a) assets have been recovered under an indemnity for costs of litigation given by certain creditors; (b) assets have been protected or preserved by the payment of moneys or the giving of indemnity by creditors; or (c) expenses in relation to which a creditor has indemnified a liquidator have been recovered; the court may make such order as it thinks just with respect to the distribution of those assets and the amount of those expenses so recovered with a view to giving those creditors an advantage over others in consideration of the risk run by them in so doing.

(8) Subject to this Act, all debts proved in the bankruptcy or death shall be paid pari passu. 3. Subject to the retention of such sums as may be necessary for the cost of administration or otherwise, the foregoing debts shall be discharged forthwith so far as the property of the debtor is sufficient to meet them. Discharge of debts

4. In the event of a landlord or other person distraining or having Distress for rent distrained on any goods or effects of a bankrupt within three months next before the date of the receiving order, the debts to which priority is given by this Act shall be a first charge on the goods or effects so distrained on or the proceeds of the sale thereof: Provided that, in respect of any money paid under any such charge, the landlord or other person shall have the same rights of priority as the person to whom such payment is made. 5. This Act shall apply in the case of a deceased person who dies insolvent, whether or not an order has been made in respect of the deceased's estate in terms of the Bankruptcy Act, as if he were a bankrupt and as if the date of his death were substituted for the date of the receiving order; Provided that the proper funeral and testamentary expenses incurred by the legal personal representative of the deceased person in and about that person's estate, together with the costs of the administration of the deceased person's estate, shall have priority over all other debts and shall rank equally between themselves. Application of Act to a deceased insolvent Cap. 82

CHAPTER 84 THE DEEDS OF ARRANGEMENT ACT

ARRANGEMENT OF SECTIONS

PART I PRELIMINARY Section 1. 2. 3. Short title Interpretation Deeds of arrangement to which this Act applies

PART II AVOIDANCE OF DEEDS OF ARRANGEMENT WHERE STATUTORY CONDITIONS NOT COMPLIED WITH 4. Avoidance of unregistered deeds of arrangement

5. Avoidance of deeds of arrangement unless assented to by a majority of creditors PART III REGISTRATION OF DEEDS OF ARRANGEMENT 6. 7. 8. 9. 10. Mode of registration Form of register Rectification of register Time for registration Inspection of register and registered deeds

PART IV PROVISIONS AS TO TRUSTEES 11. 12. 13. 14. 15. 16. 17. Section Security by trustee Penalty on trustee acting when deed of arrangement void Transmission of accounts to official receiver Transmission of accounts to creditors Audit of accounts Payment of undistributed moneys into court Preferential payment to creditor an offence

18. 19. 20. 21. 22.

Power to High Court to appoint new trustee Protection of trustees under void deeds Notice to creditors of avoidance of deed Payment of expenses incurred by trustees Application of Part IV

PART V GENERAL 23. made 24. 25. 26. 27. 28. 29. Courts in which applications for enforcement of trusts to be Relation to bankruptcy law Office copies Prescribed fees Rules Affidavits Repeal and savings

CHAPTER 84

DEEDS OF ARRANGEMENT

58of 1968 13of 1994

An Act to make provision for and to regulate deeds of arrangement made in respect of the affairs of a debtor otherwise than in pursuance of the law relating to bankruptcy; and to provide for matters connected with the foregoing. [3rd January, 1969]

PART I PRELIMINARY 1. This Act may be cited as the Deeds of Arrangement Act. Short title

2. (1) In this Act, unless the context otherwise requires"creditors generally" includes all creditors who may assent to, or take the benefit of, a deed of arrangement; "official receiver" means the official receiver appointed under the Bankruptcy Act; "prescribed" means prescribed by rules made under this Act; "property" includes money, goods, things in action, land and every description of property whether real or personal and whether situate in Zambia or elsewhere; and also obligations, easements, and every description of estate, interest and profit, present or future, vested or contingent, arising out of or incidental to property as above defined; "registrar" means the registrar appointed under the Lands and Deeds Registry Act; "rules" includes forms. (2) For the purpose of determining the number of creditors for whose benefit a deed is made, any two or more joint creditors shall be treated as a single creditor. 3. (1) A. deed of arrangement to which this Act applies shall include any instrument of the classes hereinafter mentioned whether under seal or not-

Interpretation

Cap. 82

Cap. 185

Deeds of arrangement to which this Act applies

(a) made by, for or in respect of the affairs of a debtor for the benefit of his creditors generally; (b) made by, for or in respect of the affairs of a debtor who was insolvent at the date of the execution of the instrument for the benefit of any three or more of his creditors; otherwise than in pursuance of the law for the time being in force relating to bankruptcy.

(2) The classes of instrument hereinbefore referred to are(a) (b) an assignment of property; a deed of or agreement for a composition; and

(c) in cases where creditors of the debtor obtain any control over his property or business(i) a deed of inspectorship entered into for the purpose of carrying on or winding up a business; (ii) a letter of licence authorising the debtor or any other person to manage, carry on, realise or dispose of a business with a view to the payment of debts; and (iii) any agreement or instrument entered into for the purpose of carrying on or winding up the debtor's business, or authorising the debtor or any other person to manage, carry on, realise or dispose of the debtor's business with a view to the payment of his debts.

PART II AVOIDANCE OF DEEDS OF ARRANGEMENT WHERE STATUTORY CONDITIONS NOT COMPLIED WITH 4. A deed of arrangement shall be void unless it is registered with the registrar within ninety clear days after the first execution thereof by the debtor or any creditor, or if it is executed in any place out of Zambia, then within ninety clear days after the time at which it would, in the ordinary course of post, arrive in Zambia, if posted within one week after the execution thereof, and unless it is duly stamped with the proper stamp duty. 5. (1) A deed of arrangement which either is expressed to be or is in fact for the benefit of a debtor's creditors generally, shall be void unless, before or within six weeks after the registration thereof, or within such extended time as the High Court may allow, it has received the assent of a majority in number and value of the creditors of the debtor. Avoidance of unregistered deeds of arrangement

Avoidance of deeds of arrangement unless assented to by a majority of creditors

(2) The list of creditors annexed to the affidavit of the debtor filed on the registration of the deed of arrangement shall be prima facie evidence of the names of the creditors and the amounts of their claims. (3) The assent of a creditor for the purposes of subsection (1) shall be established by his executing the deed of arrangement or sending to the trustee his assent in writing attested by a witness, but not otherwise. (4) The trustee shall file with the registrar at the time of the registration of a deed of arrangement, or, in the case of a deed of arrangement attested to after registration, within eight weeks after registration or within such extended time as the High Court may allow, a statutory declaration by the trustee that the requisite majority of the creditors of the debtor have assented to the deed of arrangement, which declaration shall, in favour of a purchaser for value, be conclusive evidence, and, in other cases, be prima facie evidence, of the fact declared. (5) In calculating a majority of creditors for the purposes of this section, a creditor holding security upon the property of the debtor shall be reckoned as a creditor only in respect of the balance (if any) due to him after deducting the value of such security, and creditors whose debts amount to sums not exceeding one hundred kwacha shall be reckoned in the majority in value, but not in the majority in number.

PART III REGISTRATION OF DEEDS OF ARRANGEMENT 6. (1) The registration of a deed of arrangement under this Act shall be effected in the following manner: A true copy of the deed, and of every schedule or inventory thereto annexed, or therein referred to, shall be presented to and filed with the registrar within ninety clear days after the execution of the deed, together with an affidavit verifying the time of execution and containing particulars of the residential and postal addresses and occupation of the debtor, and of the place or places where his business is carried on, and the name or names under which he carries on such business, and an
Mode of registration

affidavit by the debtor stating the total estimated amount of property and liabilities included under the deed, the total amount of the composition (if any) payable thereunder and the names and addresses of his creditors. (2) No deed shall be registered under this Act unless the original of the deed, duly stamped with the proper stamp duty, is produced to the registrar at the time of such registration. 7. The registrar shall keep a register wherein shall be entered, as soon Form of register as conveniently may be after the presentation of a deed for registration, an abstract of the contents of every deed of arrangement registered under this Act, containing the following and any other prescribed particulars: (a) the date of the deed;

(b) the name, residential and postal addresses and occupation of the debtor, and the place or places where his business was carried on at the date of the execution of the deed, and the name or names under which the debtor carried on business, and the name and postal address of the trustee (if any) under the deed; (c) a short statement of the nature and effect of the deed, and of the composition in the kwacha payable thereunder; (d) the date of registration; and

(e) the amount of property and liabilities included under the deed, as estimated by the debtor. 8. The High Court, upon being satisfied that the omission to register a Rectification of deed of arrangement within the time required by this Act or that the register omission or misstatement of the name, residential or postal addresses, occupation or business name and address of any person was accidental, or was due to inadvertence, or to some cause beyond the control of the debtor and not imputable to any negligence on his part, may, on the application of any party interested, and on such terms and conditions as are just and expedient, extend the time for registration, or order the omission or misstatement to be supplied or rectified by the insertion in the register of the true name, residential and postal addresses, occupation and business name and address.

9. Where the time for registering a deed of arrangement expires on a Sunday, or other day on which the registration office is closed, the registration shall be valid if made on the next following day on which the office is open. 10. Any person shall be entitled, at all reasonable times, to search the register on payment of such fee as may be prescribed, and subject to such regulations as may be prescribed, and shall be entitled, at all reasonable times, to inspect, examine, and make extracts from any registered deed of arrangement, without being required to make a written application or to specify any particulars in reference thereto, upon payment of such fee as may be prescribed: Provided that the extracts shall be limited to the dates of execution and of registration, the names, addresses, and occupations of the debtor and of the parties to the deed, the business name and address of the debtor, a short statement of the nature and effect of the deed, and any other prescribed particulars.

Time for registration

Inspection of register and registered deeds

PART IV PROVISIONS AS TO TRUSTEES Security by 11. (1) The trustee under a deed of arrangement shall, within seven trustee days from the date on which the statutory declaration certifying the assent of the creditors is filed, give security in the prescribed manner to the Registrar of the High Court in a sum equal to the estimated assets available for distribution amongst the unsecured creditors as shown by the affidavit filed on registration, to administer the deed properly and account fully for the assets which come to his hands, unless a majority in number and value of the debtor's creditors, either by resolution passed at a meeting convened by notice to all the creditors, or by writing addressed to the trustee, dispense with his giving such security: Provided that, when such a dispensation has been so given, the trustee shall forthwith make and file with the registrar a statutory declaration to that effect, which declaration shall, in favour of a purchaser for value, be conclusive evidence, and in other cases, be prima facie evidence, of the

facts declared. (2) If a trustee under a deed of arrangement fails to comply with the requirements of this section, the High Court, on the application of any creditor and after hearing such persons as it may think fit, may declare the deed of arrangement to be void, or may make an order appointing another trustee in the place of the trustee appointed by the deed of arrangement. (3) A certificate that the security required by this section has been given by a trustee, signed by the Registrar of the High Court and filed with the registrar, shall be conclusive evidence of the fact. (4) All moneys received by a trustee under a deed of arrangement shall be banked by him to an account to be opened in the name of the debtor's estate. (5) In calculating a majority of creditors for the purposes of this section, a creditor holding security upon the property of the debtor shall be reckoned as a creditor only in respect of the balance (if any) due to him after deducting the value of such security, and creditors whose debts amount to sums not exceeding one hundred kwacha shall be reckoned in the majority in value but not in the majority in number. 12. If a trustee acts under a deed of arrangementPenalty on trustee acting when deed of arrangement void

(a) after it has to his knowledge become void by reason of non-compliance with any of the requirements of this Act or any enactment repealed by this Act; or (b) after he has failed to give security within the time and in the manner provided for by this Act or any enactment repealed by this Act; he shall be liable on conviction to a fine not exceeding fifteen penalty units for every day between the date on which the deed became void or the expiration of the time within which security should have been given, as the case may be, and the last day on which he is proved to have acted as trustee, unless he satisfies the court that his contravention of the law was due to inadvertence, or that his action had been confined to taking such steps as were necessary for the protection of the estate. (As amended by Act No. 13 of 1994)

13. (1) Every trustee under a deed of arrangement shall, at such times as Transmission of may be prescribed, or as he directs, transmit to the official receiver, an accounts to account of his receipts and payments as trustee, in the prescribed form official receiver and verified in the prescribed manner. (2) If any trustee fails to transmit such account, he shall be liable on Cap. 82 conviction to a fine not exceeding fifteen penalty units for each day during which the default continues, and a Judge of the High Court may, for the purposes of enforcing the provisions of subsection (1), exercise, on the application of the official receiver, all the powers conferred on the court by the Bankruptcy Act in cases of bankruptcy. (3) The accounts transmitted to the official receiver in pursuance of this section shall be open to inspection by the debtor or any creditor or other person interested, on payment of the prescribed fee, and copies of or extracts from the accounts shall, on payment of the prescribed fee, be furnished to the debtor, the creditors, or any other interested persons. (4) In this section, "trustee" shall include any person appointed to Cap. 82 distribute a composition or to act in any fiduciary capacity under any deed of arrangement, and "prescribed" means prescribed by rules under the Bankruptcy Act. (As amended by Act No. 13 of 1994) 14. Every trustee under a deed of arrangement shall, at the expiration of six months from the date of the registration of the deed, and thereafter at the expiration of every subsequent period of six months until the estate has been finally wound up, send to each creditor who has assented to the deed a statement in the prescribed form of the trustee's accounts and of the proceedings under the deed down to the date of the statement, and shall, in his affidavit verifying his accounts transmitted to the official receiver, state whether or not he has duly sent such statements, and the dates on which the statements were sent; and, if a trustee fails to comply with any of the provisions of this section, the High Court may, for the purpose of enforcing those provisions, exercise, on the application of the official receiver, all the powers conferred on the court by subsection (3) of section ninety-eight of the Bankruptcy Act in cases of bankruptcy. 15. (1) Where, in the course of administration of the estate of a debtor Transmission of accounts to creditors Cap. 82

Audit of

who has executed a deed of arrangement, or within twelve months from accounts the date when the final accounts of the estate were rendered to the Cap. 82 official receiver, an application in writing is made to the official receiver by a majority in number and value of the creditors who have assented to the deed for an official audit of the trustee's accounts, the official receiver may cause the trustee's accounts to be audited, and in such case all the provisions of theBankruptcy Act relating to the institution and enforcement of an audit of the accounts of a trustee in bankruptcy (including the provisions as to fees) shall, with necessary modifications, apply to the audit of the trustee's accounts, and the official receiver shall have power on the audit to require production of a certificate for the taxed costs of any legal practitioner whose costs have been paid or charged by the trustee, and to disallow the whole or any part of any costs in respect of which no certificate is produced. (2) The official receiver may determine how and by what parties the costs, charges and expenses of and incidental to the audit (including any prescribed fees chargeable in respect thereof) are to be borne, whether by the applicants or by the trustee or out of the estate, and may, before granting an application for an audit, require the applicants to give security for the costs of the audit. 16. At any time after the expiration of two years from the date of the registration of a deed of arrangement, the High Court may, on the application of the trustee or a creditor, or on the application of the debtor, order that all moneys representing unclaimed dividends and undistributed funds then in the hands of the trustee or under his control be paid into court. 17. If a trustee under a deed of arrangement pays to any creditor out of the debtor's property a sum larger in proportion to the creditor's claim than that paid to other creditors entitled to the benefit of the deed, then, unless the deed authorises him to do so, or unless such payments are either made to a creditor entitled to enforce his claim by distress or are such as would be lawful in a bankruptcy, he shall be guilty of an offence and liable on conviction to a fine not exceeding three thousand penalty units or to imprisonment for a period not exceeding twelve months, or to both. (As amended by Act No. 13 of 1994) 18. (1) The High Court may, whenever it is expedient to appoint a new Power to High trustee under a deed of arrangement and it is inexpedient or Court to appoint Payment of undistributed moneys into court

Preferential payment to creditor an offence

impracticable so to do without the assistance of the court, make an order new trustee for the appointment of such new trustee; and, in particular and without prejudice to the generality of the foregoing provision, the court may make an order for the appointment of a new trustee in substitution for a trustee who is convicted of felony, or is a mentally disordered person, or a defective, or is a bankrupt, or is a corporation which is in liquidation or has been dissolved., (2) An order under this section, and any consequential vesting order or conveyance, shall not operate further or otherwise as a discharge to any former trustee than an appointment of a new trustee under any power for that purpose contained in any deed of arrangement would have operated. 19. (1) Where a deed of arrangement is void by reason that the requisite Protection of trustees under majority of creditors has not assented thereto, or, in the case of a deed for the benefit of three or more creditors, by reason that the debtor was void deeds insolvent at the time of the execution of the deed and that the deed was not registered as required by this Act, but is not void for any other reason, and a receiving order is made against the debtor upon a petition presented after the lapse of three months from the execution of the deed, the trustee under the deed shall not be liable to account to the trustee in the bankruptcy for any dealings with or payments made out of the debtor's property which would have been proper if the deed had been valid, if he proves that at the time of such dealings or payments he did not know, and had no reason to suspect, that the deed was void. (2) Where a receiving order is made in lieu of commital against a debtor Cap. 82 under the Bankruptcy Act, this section shall apply if the receiving order was made after the lapse of three months from the execution of the deed. 20. When a deed of arrangement is void by virtue of this Act for any reason other than that, being for the benefit of creditors generally, it has not been registered within the time allowed for the purpose by this Act, the trustee shall, as soon as practicable after he has become aware that the deed is void, give notice in writing thereof to each creditor whose name and address he knows, and file a copy of the notice with the registrar, and, if he fails to do so, he shall be liable on conviction to a fine not exceeding six hundred penalty units. (As amended by Act No. 13 of 1994) 21. Where a deed of arrangement is avoided by reason of the Payment of Notice to creditors of avoidance of deed

bankruptcy of the debtor, any expenses properly incurred by the trustee expenses under the deed in the performance of any of the duties imposed on him incurred by by this Act shall be allowed or paid him by the trustee in the bankruptcy trustees as a first charge on the estate. 22. (a) (b) (c) (d) The provisions of this Part, except such of those provisionsas relate to the transmission of accounts to the official receiver; as provide for the protection of trustees under void deeds; as require a notice to be given to creditors of avoidance of deeds; as provide for the payment of expenses incurred by trustees; Application of Part IV

shall not apply to a deed of arrangement made for the benefit of any three or more of the debtor's creditors unless it is in fact for the benefit of the debtor's creditors generally.

PART V GENERAL 23. Any application by the trustee under a deed of arrangement, which either is expressed to be or is in fact for the benefit of the debtor's creditors generally, or by the debtor or by any creditor entitled to the benefit of such a deed of arrangement, for the enforcement of the trusts or the determination of questions under it, shall be made to the High Court. Courts in which applications for enforcement of trusts to be made

24. (1) If the trustee under a deed of arrangement, which either is Relation to expressed to be or is in fact for the benefit of the debtors' creditors bankruptcy law generally, serves in the prescribed manner on any creditor of the debtor notice in writing of the execution of the deed and of the filing of the statutory declaration certifying the creditors' assents with an intimation that the creditor will not, after the expiration of one month from the service of the notice, be entitled to present a bankruptcy petition against the debtor founded on the execution of the deed or on any other act committed by him in the course or for the purpose of the proceedings preliminary to the execution of the deed as an act of bankruptcy, that creditor shall not, after the expiration of that period, unless the deed becomes void, be entitled to present a bankruptcy petition against the debtor founded on the execution of the deed or any act so committed by him as an act of bankruptcy.

(2) Where such a deed of arrangement as aforesaid has become void by virtue of this Act or any enactment repealed by this Act, the fact that a creditor has assented to the deed shall not disentitle him to present a bankruptcy petition founded on the execution of the deed of arrangement as an act of bankruptcy. (3) Save as otherwise expressly provided by this Act, nothing in this Act shall be construed as repealing or shall affect any provision of the law for the time being in force in relation to bankruptcy or shall give validity to any deed or instrument which by law is an act of bankruptcy or void or voidable. Office copies 25. Subject to the provisions of this Act and to any rules made thereunder, any person shall be entitled to have an office copy of, or extract from, any deed registered under this Act, upon paying for it at the like rate as for office copies of judgments of the High Court, and any copy or extract purporting to be an office copy or extract shall, in all courts and before all arbitrators or other persons, be admitted as prima facie evidence thereof, and of the fact and date of registration as shown thereon. 26. There shall be taken, in respect of the registration of deeds of Prescribed fees arrangement, and in respect of any copies or extracts or official searches made by the registrar, such fees as may be from time to time prescribed; and nothing in this Act contained shall make it obligatory on the registrar to do, or permit to be done, any act in respect of which any fee is specified or prescribed, except on payment of such fee. 27. The Attorney-General may, from time to time, by statutory instrument, make rules for carrying into effect the objects of this Act, and may, from time to time, alter, amend, or revoke all or any of such rules. Rules

28. An affidavit required by or for the purpose of this Act may be Affidavits sworn before any person before whom such an affidavit may under any law for the time being in force, be sworn. 29. (1) The Deeds of Arrangement Act, 1914, of the United Kingdom Repeal and

(hereinafter referred to as "the Act of 1914") shall cease to apply in Zambia as part of the law thereof, and the Interpretation and General Provisions Act shall apply in relation to this subsection as if the Act of 1914 had been hereby repealed. (2) This Act shall apply to proceedings commenced under the Act of 1914 and pending at the commencement of this Act, as if such proceedings had been commenced under this Act. (3) Until revoked or altered under this Act, rules made under the Act of 1914, and in force at the commencement of this Act, shall continue in force, and shall have effect as if made under this Act. (4) The provisions of this Act shall apply to and in respect of a deed of arrangement executed before the commencement of this Act if and so far as the corresponding provisions of the Act of 1914 would have applied to or in respect of such deed had this Act not been enacted.

savings Cap. 2