Introduction

This essay discusses the capacity of the original and unlimited jurisdiction conferred
upon the High Court of the judicature for Zambia. It will begin by defining the term
jurisdiction, and then it will distinguish original and unlimited jurisdiction from appellate
jurisdiction. Lastly, it will determine whether or not the jurisdiction of the High Court
cannot be restricted by any law.
Jurisdiction
Black's Law Dictionary, sixth edition, defines jurisdiction as follows:
A term of comprehensive import embracing every kind of judicial action. It is the
power of the court to decide a matter in controversy and presupposes the
existence of a duly constituted court with control over the subject matter and the
parties. Jurisdiction defines the powers of courts to inquire into facts, apply the
law, make decisions, and declare judgment. The legal right by which judges
exercise their authority. It exists when court has cognizance of class of cases
involved, proper parties are present, and point to be decided is within powers of
court.1
This is expanded upon in Anderson's "A Dictionary of Law, A.D. 1893" as follows:
Power to hear and determine a cause. Power to hear and determine the
subject-matter in controversy between parties to a suit, to adjudicate or exercise
any judicial power over them. (Relates to the exercise of judicial powers.) Refers
to the power of the court over the parties, the subject-matter, the res or property
in contest, and the authority of the court to render the judgment or decree which
it assumes to make. (By jurisdiction over the "subject-matter" is meant the nature
of the cause of action or relief sought; and this is conferred by the sovereign
authority which organizes the court, and is to be sought for in the general nature
of its powers or in the authority specially conferred. Jurisdiction of the "person" is
1 Henry Campbell Black, Joseph Nolan and Jacqueline Nolan-Haley, Blacks Law Dictionary (6th edn, West
Publishing Company St Paul 1990)

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obtained by the service of process, or by the voluntary appearance of the party in

the progress of the cause. Jurisdiction of the "res" is obtained by seizure under
process of the court, whereby it is held to abide such order as the court may
make concerning it. Hence want of jurisdiction may be shown as to the subjectmatter, the person, or, in proceedings in rem, as to the thing.) 2
In a nutshell, these definitions tell us that jurisdiction is the power of a court to make
binding decisions with regard to people, and peoples' rights in property; that in order for
the court to secure that power, it must have control, authority and/or power, over the
people, or parties to the controversy. This is called in personam jurisdiction; and the
property in controversy. This is called in rem jurisdiction. Lastly, the specific kind of
controversy. This is known as subject-matter.' For instance, The Industrial Relations
Court of the Judicature for Zambia cannot hear a divorce case. 3 This is also known as
the "nature" of a matter, or cause of action. 4 Furthermore, it was said by Ngulube DCJ in
Miyanda v The High Court5 at page 64 that:
The term jurisdiction should first be understood. In the one sense, it is the
authority which a court has to decide matters that are litigated before it; in
another sense, it is the authority which a court has to take cognisance of matters
presented in a formal way for its decision.
Original Jurisdiction
Original jurisdiction is defined as the authority of a court to try a case, as distinguished
from appellate jurisdiction to hear appeals from trial judgments. Original jurisdiction is
the court's authority to hear the claim in the first instance, rather than on appeal. The

2 William C Anderson, A Dictionary of Law (Chicago, T H Flood 1893)

3 Article 94 of the Constitution of Zambia Act, Chapter 1, Volume 1 of the Laws of Zambia
4 Terence Ingman, The English Legal Process (Blackstone Press London 1998)
5 (1984) Z.R. 62 (S.C.)
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court rules on issues directly, rather than on matters which are referred to it after being
heard by another court.6
The High Court is established under Article 91(1) (b) of the Constitution of Zambia Act,
Chapter 1, Volume 1 of the Laws of Zambia (hereinafter in this part referred to as the
constitution).7 Article 94 (1) of the Constitution states:
There shall be a High Court for Zambia, which shall have, except as to the
proceedings in which the Industrial Relations Court has exclusive jurisdiction
under the Industrial and Labour Relations Act, unlimited and original jurisdiction
to hear and determine any civil or criminal proceedings under any law and such
jurisdiction and power as may be conferred on it by the Constitution or any other
law. 8
The natural understanding of article 94 of the Constitution is that the High Court
exercises both original jurisdiction and appellate jurisdiction in civil and criminal matters.
By possessing original jurisdiction, the court is able to hear cases at first instance it
can deal with trials of matters coming before the courts for the first time. A special
aspect of the Court's original jurisdiction is its judicial review jurisdiction, under which it
determines the constitutionality of legislation and actions taken by the Government. The
Court exercises its appellate jurisdiction when it hears appeals from trials originating in
the Subordinate Courts.
Article 94 further provides that no law can ouster the jurisdiction of the High Court.
An ouster clause or privative clause is, in countries with common law legal systems, a
clause or provision included in a piece of legislation by a legislative body to exclude
judicial review of acts and decisions of the executive by stripping the courts of their
supervisory judicial function.9 In Edward Jack Shamwana and Others v The Attorney

6 Munalula Margaret Mulela, Legal Process: Zambian Cases, Legislation and Commentaries (University of Zambia
Press Lusaka 2004)

7 Article 91(1) of the Constitution of Zambia Act, Chapter 1, Volume 1 of the Laws of Zambia
8 Article 94 of the Constitution of Zambia Act, Chapter 1, Volume 1 of the Laws of Zambia
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General,10 it was held that the High Court has power to make orders of prohibition and
mandamus in criminal matters before any subordinate court. However, this power is
discretionary and the discretion is exercised according to the circumstances of each
case.
Unlimited Jurisdiction
The meaning of article 94 (1) was clarified in the case of Zambia National Holdings
Limited and UNIP v Attorney-General11 in which it was held that although Article 94 of
the Constitution gives the High Court unlimited jurisdiction, that court is bound by all the
laws which govern the exercise of such jurisdiction.

Conclusion
In conclusion, Article 94(1) gives the High Court unlimited and original jurisdiction i.e. it
can adjudicate on any matter and is not restricted by territory. However, in Zambia
National Holdings Ltd & UNIP v The Attorney General, unlimited jurisdiction was
enunciated that it does not mean limitless since the court must exercise its jurisdiction in
accordance with the law. Hence, the jurisdiction of the High Court can be restricted by
any written law so long as such a law is in consonant with the constitution.

9 Alfred Chanda, Zambian Constitutional Law: Cases and Materials (University of Zambia Press Lusaka, 2011)
10 (1981) Z.R. 8 (H.C.)
11 (S.C.Z. Judgment No. 3 of 1994) [1994] ZMSC 30 (1 December 1994); (1994 ) S.J. 22 (S.C.)
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BIBLIOGRAPHY

Books
Anderson W C, A Dictionary of Law (T H Flood Chicago 1893)
Black H C, Nolan J and Nolan H J, Blacks Law Dictionary (6th edn, West Publishing
Company St Paul 1990)
Ingman T, The English Legal Process (Blackstone Press London 1998)
Mulela M M, Legal Process: Zambian Cases, Legislation and Commentaries (University
of Zambia Press Lusaka 2004)

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Case Law
Edward Jack Shamwana and others v The Attorney General (1981) Z.R. 8 (H.C.)
Miyanda v The High Court (1984) Z.R. 62 (S.C.)
Zambia National Holdings Limited and UNIP v Attorney-General (S.C.Z. Judgment No. 3
of 1994) [1994] ZMSC 30 (1 December 1994); (1994) S.J. 22 (S.C.)

Statutes
The Constitution of Zambia Act, Chapter 1, Volume 1 of the Laws of Zambia

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