PLEADINGS
By Mathias Michelo
Pleadings may be defined as a party’s written statements, which set out the detailed contentions
and claims or counterclaims, so that the other party may know what case he/she has to meet or
what the reply to his case is. It must be noted that the term pleadings does not include a petition,
summons or preliminary act. It does include a statement of claim, defence, counterclaim, reply,
defence to counterclaim, rejoinder, surrejoinder, rebutter and surrebutter, as well as further and
better particulars of any of the foregoing. It is important for advocates to follow the rules of
pleadings strictly because failure to do so may prove fatal in some cases (Henry M Kapoko v. The
People1).
Functions of Pleadings
The main and only function of pleadings might seem to bring parties to an issue, however, this is
not the only function of pleadings. The court in the case of Anderson Mazoka and others v. Levy
Patrick Mwanawasa and others2 was very instructive and clear on the functions of pleadings. The
court held that,
“The function of pleadings is very well known, it is to give fair notice of the case which has to be
met and to define the issues on which the court will have to adjudicate in order to determine the
matter in dispute between the parties. Once the pleadings have been closed, the parties thereto are
bound by the pleadings and the court has to take them as such.”
The courts in the case of Alfonso Kaziche Phiri v. Banda Ackleo IA and another3 affirmed that
pleadings are used to give fair notice to the other party. They further explained that the essence of
giving fair notice is so as to not ambush the other party.
One of the functions of pleadings is to assist the court by defining bounds of the action, which
cannot be extended without leave of the court and consequential amendment of the pleadings. It
1
C.C.Z Selected Judgment No. 43 of 2016.
2
(2005) Z.R 138 (S.C).
3
(HP 37 OF 2021) 2021 ZMHC 40.
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was held in the case of Alfonso Kaziche Phiri v. Banda Ackleo IA and another4 that, “It is trite
law that once closed the parties to an action are bound by their pleadings. That being said
however, there are exceptions to this general rule”. The court in the case of Augustine Kapembwa
Vs Danny Maimbolwa and Another5 provided the exception in which a party can raise issues or
evidence not pleaded. It was held that where a party refers to evidence not pleaded, the proper
course is for the other party to object immediately to this reference, thereupon it would be the duty
of the court to decide whether or not it is necessary to grant an adjournment to the other party and
whether to allow an amendment of the pleadings, subject to an order for costs. This was affirmed
in the case of Madison General Insurance Co Ltd v. Longrun Logistics Ltd.6 However, a radical
departure from the case pleaded, amounting to a separate and distinct new case, cannot entitle a
party to succeed.
Pleadings also provide a guide for the proper conduct of a trial. Example, they determine upon
which party the burden of proof lies on and who has the right to open the case. They limit the kind,
range or combination of reliefs the court may grant. They also act as record of the precise issues
raised, so that the parties may be met by the plea of res judicata or issue estoppel.
Formalities of Pleadings
I. Every pleading in an action must bear on its cover page the year in which the writ in
the action was issued, the title of thee action and description of the pleading.
II. Every pleading must be divided into paragraphs numbered consecutively each
allegation being so far as convenient contained in a separate paragraph.
III. Dates, sums and other numbers must be expressed in figures and not words.
IV. Every pleading must be indorsed where the party sues or defends in person with the
name and address of the person, and in any other case with the name or firm and
business address of the legal practitioner by whom it was serviced, and (if the legal
practitioner is an agent) the name or firm and business address of the principal.
V. Every pleading of a party must be signed by a legal practitioner, if settled by him or by
the party if he sues or defends in person.
4
Ibid.
5
(1981) Z.R 127.
6
(Appeal No. 159/2023) 2024 ZMCA 167.
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Every pleading contains a prayer. A prayer sets out the reliefs sought based on the averments made
in the particulars of claim. A pleading which does not set out the reliefs claimed does not contain
a complete cause of action and renders the pleading irregular. Every pleading must, at the end,
bear the date and place at which the pleadings were drafted.
Fundamental Principles of Pleadings
A. Parties must plead material facts only.
B. Parties must plead facts, not evidence.
C. Parties must plead facts, not law. However, there is an exception to this principle. Where a
party proposes to rely on a cause of action or defence arising from statute, he/she must
clearly identify inn his/her pleading the particular provision in the statute upon which
he/she relies, and the relief claimed in the action must indicate what specific relief is sought
from the statute.
D. Pleadings must be concise.
Pleadings are very important aspect of any case. They help define what case is brought against a
person and what evidence need to be produced. They ought to be correctly drafted and filed in as
some errors may lead to the case being thrown out of court on a procedural technicality basis.
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