1

YONNAH SHIMONDE AND FREIGHT AND LINERS AND

MERIDIEN BIAO BANK (Z) LTD

SUPREME COURT
NGULUBE, C.J., SAKALA AND CHIRWA, JJ.S.
24TH NOVEMBER, 1998 AND 13TH APRIL, 1999
(S.C.Z. JUDGMENT NO. 7 OF 1999)

Flynote

Civil Law - Conveyancing - Mortgage - dispute over computation of

compound interest.

Headnote

The second appellants defaulted on a loan they had borrowed from

respondent bank; the loan was secured by a Mortgage over a house
belonging to the now deceased first appellant. The bank went into
liquidation. At the time of the transaction, the bank was charging
commercial interest which was also compounded. After the commencement
of the action right down to the summary judgment and despite the bank then
having gone into receivership prior to liquidation, interest continued being
charged on the said basis. The court below ruled that commercial
compound interest would continue to be charged on the judgment debt until
payment despite supervening receivership and subsequent liquidation. He
rejected the submission that interest upon the judgment should be limited to
6% which was the rate then applicable under the Judgments Act prior to the
latest amendments. The appellants appealed.

Held:

The appeal succeeds to the extent that the Judgment below has be
reversed and varied on the question of interest. There can be no
justification for allowing the charging of compound commercial interest
forever by a liquidated bank which is obliged, by law, to stop conducting
business.

Appeal allowed.

Cases referred to:

 2

(1) Bank of Zambia v Anderson and Andrew Anderson (1993) S.J. 41 (S.C.)
(2) Attorney-General v Mooka Mubiana Appeal No. 38
(3) Union bank Zambia Ltd v Southern Province Co-operative Marketing union Ltd (1997)
S.J. 30 (S.C.)

For the appellants: F.M. Hamakando, of Hamakando Zulu & Co.

For the respondents: Christina Kunda of Corpus Globe.

Judgment

NGULUBE, C.J.: delivered the judgment of the Court.

The second appellants defaulted on a loan they had borrowed from the
respondent bank; the loan was secured by a mortgage over a house
belonging to the now deceased first appellant. Meanwhile, the bank has also
since gone into liquidation. It was in evidence that at the time of the
transaction, the bank was charging commercial interest which was also
compounded. After the commencement of the action and right down to the
summary judgment and despite the bank then having gone into receivership
(prior to liquidation), interest continued being charged on the said basis.

The learned trial Commissioner declined to give the bank possession of the
mortgaged property opting to allow more time to the debtors to discharge all
their obligation and foreclosure only to follow in the event of further default.
Surprisingly, the bank did not think to garnishee Zambia Railways who had
admitted to owing the appellants a sum far greater than was the subject of
the suit.

The parties disagreed on the computation of the indebtedness mostly on

account of the continued charging of commercial compound interest which
even failed to take account of certain moneys which were paid into court.
On application to the learned trial Commissioner for review, the court ruled
that commercial compound interest would continue to be charged on the
judgment debt until payment and this inspite of the supervening receivership
and subsequent liquidation. He rejected a submission that interest upon the
judgment should be limited to 6% which was the rate then applicable under
the Judgments Act prior to the latest amendments.

In choosing to apply a rate of interest upon the judgment debt based on the
current bank rates at the time, the learned trial Commissioner relied on
Statutory Instrument No. 174 of 1990 which amended the rate of interest
 3

specified at the time in the High Court Rules. However, that Statutory
Instrument infact flew in the teeth of the Judgments act which prevailed over
the subordinate legislation and which decreed 6% as the rate of interest on a
money judgment. The decisions of this court, such as Bank Of Zambia v
Anderson S.C.Z. Judgment No.13 of 1993, Attorney-General v Mooka
Mubiana Appeal No. 38 of 1993 made it very clear that the provisions of an
Act of parliament could not be ignored nor overridden by a mere Statutory
Instrument. See Section 20 (4) of the Interpretation and General Provisions
Act, Cap.2. The Judgments Act has since been amended and it accords with
what the Statutory Instrument had proposed. However, the fact still is that at
the time of the judgment herein, it was not lawful to award more than 6%.
The appeal concerned the award of commercial interest ad infinitum; it has
to succeed and interest of 6% substituted.

There was also a ground of appeal urged by Mr. Hamakando that, as from
the date of receivership and subsequently, the bank should not have charged
any interest at all. As Miss Kunda countered, the relationship of banker and
customer does not terminate merely upon a receiver to run the bank being
appointed so that the bank’s right to charge interest – including compound
interest where applicable, as here – did not cease. However, when a
judgment of the court is given, any principal and interest merge into the
judgment debt and the relationship of banker and customer is clearly at an
end. It follows from the foregoing that the indebtedness has to be computed
as indicated in this judgment. There can be no question of continuing with
commercial interest or compounding it after the judgment below. Mr.
Hamakando also alluded to penal interest. There was no clear evidence that
any penal interest was also levied. If it was, then of course it has to be
expunged: See Southern Province Co-operative Marketing Union v Union
Bank Zambia Limited S.C.Z. Judgment No. 7 of 1997.

In sum, the appeal succeeds to the extent that the judgment below has been
reversed and varied on the question of interest. There can be no justification
for allowing the charging of compound commercial interest forever by a
liquidated bank which is obliged, by law, to stop conducting business: See
s.87 of the Banking and Financial Services Act, Cap.387 of the 1995 Edition
of the Laws. Costs follow the event and will be taxed if not agreed.
Enforcement of the judgment, as varied, is as usual a matter for the High
Court.
 4

MATCH CORPORATION LIMITED AND DEVELOPMENT BANK

OF ZAMBIA AND THE ATTORNEY GENERAL

NGULUBE,C.J., SAKALA, CHAILA, CHIRWA AND LEWANIKA,

JJ.S.
3RD JUNE, 1998 AND 2ND MARCH,1999.
(S.C.Z. JUDGMENT NO. 3 OF 1999)

Flynote

Civil procedure - Loans - Secured by floating charge and specifc charge

Civil procedure - Imposition of new government policies - Consequent
imposition of taxes, increase in electricity tariffs - Levying of Penal Interest
- Whether causing appellants defalt in repaying loans Civil Procedure -
Principle of Indemnity whether applicable in casu - regard given to
principle of stare decisis.

Headnote

The appellant had obtained foreign currency and local currency loans from
the 1st respondent between 1989 and 1991. The loans were secured by a
floating charge and a specific charge over two real property in Luanshya
and Lusaka and over plant and machinery. The foreign currency was
repayable according to a specific schedule at the rate of exchange of the
dollar to the Kwacha prevailing from time to time. The appellant and other
borrowers of the 1st respondent soon found themselves in severe distress
when the new MMD government introduced liberalised economic policies
which saw the Kwacha depreciate dramatically against the hard currencies.
Consequently, the borrowers, including the appellant, defaulted on their
loans to the first respondent.

Held:

That there was the necessary special relationship between the parties to
support the creation of rights of indemnity.

For appellant: M.F. Sikatana , of Veritus Chambers.

For 1st respondent: B. Gondwe, of Development Bank of Zambia.
For 2nd respondent: B. Mumba, State Advocate.
 5

____________________________________________
Judgment

NGULUBE,C.J.: delivered the judgment of the court.

It was not in dispute below that the appellant had obtained loans between
August, 1989 and March, 1991, comprising a total sum of U.S. $2,279,000
in assorted foreign currencies and K10 Million in local currency for the
purchase of plant and machinery needed for the production of calcium
carbide. At the time, one U.S. dollar equalled K8.00. The loans were secured
by a floating charge and a specific charge over two real properties located at
Plot 1320 Luanshya and Plot 5506 Lusaka and over the plant and machinery.
The foreign currency loan was repayable in accordance with an agreed
schedule at the rate of exchange of the dollar to the Kwacha prevailing from
time to time. The appellant and other borrowers of the first respondent soon
found themselves in severe distress when the new MMD Government
introduced liberalised economic policies which saw the Kwacha depreciate
dramatically against the hard currencies. Counsel for the appellant and
indeed a witness called on their behalf at the trial spoke of the manufacturing
industry in this country suddenly facing a crisis induced by the new
Government policies which saw the imposition of taxes on imported new
materials, huge increases in the electricity tariffs, and the free inflow of
cheaper imported finished products from countries which still subsidise and
protect their industries. The witness painted a portrait of policy changes that
left a trail of destruction in the manufacturing sector. The exchange rate of
the Kwacha to the dollar soon made most foreign currency loans virtually
unmanageable and almost unrepayable. The borrowers defaulted. It was
pointed out in the arguments that this state affairs was compounded by the
levying of penal interest, the kind of interest which this Court has recently
pointed out cannot be allowed: See for example Union Bank Zambia Ltd v
Southern Province Co-operative Marketing Union Ltd, S.C.Z. Judgment No.
7 of 1997. This means that we can immediately reject the arguments in this
appeal by Counsel for the bank that penal interest was justified allegedly
because the African Development Bank - one of the sources of the foreign
currency lent to borrowers - itself exacted some kind of penal element of
10% per annum on all the bank’s own late payments. This means that the
state of the account and of the arrears position will have to be recalculated to
expunge anything by way of or attributable to the inclusion of penal interest.
This aspect of the appeal has to be allowed. However, to continue with the
narrative, the bank and the Government through the Ministry of Finance
 6

recognised the difficulties for the borrowers brought about by the

fluctuations in the exchange rates of the Kwacha to hard currencies. Thus, it
was in evidence that the Government - a major shareholder in the bank - had
intervened in 1986 and had arranged through the Central bank (the Bank of
Zambia) to indemnify the borrowers of the bank against losses due to
exchange fluctuations. It was also in evidence that by letter dated 25th
February, 1993, written by the Permanent Secretary at the Ministry of
Finance, the Government undertook to indemnify the borrowers against the
exchange losses they would suffer in servicing their loans on account of
fluctuations which had now wrought a desperate situation.

The evidence on record showed that it was none other than the respondent
bank which made spirited submissions to the Ministry of Finance to revoke
the offer of indemnity. It is a matter of surprised and comment that the bank
fought so hard to slam the door on a possible solution to the predicament
faced by the borrowers and the bank itself. Ostensibly, this was because it
would have cost the Government too much - K10 billion in fact - to bail out
the borrowers. As Counsel for the appellants pointed out and the Court
below wryly observed, this was the same Government that subsequently
spent K90 billion to try to bail out Meridien BIAO Bank, a private bank.
The result was that by a letter dated 15th March, 1993, addressed to the
respondent bank by the Deputy Minister of Finance, the indemnities were
revoked the learned trial Judge in this case held that the indemnity had
become effective and the Government became liable to absorb and meet the
exchange losses prior to the date of the revocation. The quantum of the
Government’s obligation remained to be valued.

The bank had sued the defaulting appellant for an order for possession and
sale of the plant and machinery and the recovery of all monies owed by the
borrower. In rather solomonic fashion, the learned trial Judge did not grant
all those orders but instead directed that the Government meet its obligation
while the appellant also do pay within a month after the assessment their
portion to be assessed by the Deputy Registrar which would include the
principal any exchange losses after 15th March, 1993. The learned Judge
also ordered that in accordance with the Lome IV Convention the parties do
re-negotiate in order to lessen the burden on the borrowers.

There is an appeal and cross appeal.

 7

In this case, we were asked to reconsider our decision in an earlier case

between another borrower and the bank, that is the case of Vaccum Forming
Industries Ltd and Other v Development Bank of Zambia S.C.Z. Appeal No.
88 of 1994 in which the judgment of this Court was rendered on 16th July,
1997. That case which was on all fours was tried before a different Judge
who came to a different conclusion on the indemnity and who tried the case
on affidavit evidence only. On the principles of stare decisis, Counsel
recognised that our earlier decision would be binding unless good reason
exists to depart from it or to effect a variation. As a matter of fact, Counsel
attempted to arrest our first judgment until the cases could be consolidated
and a single decision rendered. However, that was not to be. The principle of
stare decisis was considered in Paton v Attorney General and Others, (1968)
Z.R.185. The leading judgment with which the other two members of the
bench agreed was delivered by Doyle, J.A., as he then was and he had this to
say, at p. 190:

“Mr. Ryan, for the defendant cross-appellant, first argued that

Thixton’s case was wrongly decided. He submitted that this court was not
bound by its previous decisions. The United States Supreme Court, the
Supreme Court of the Republic of Ireland, the ultimate courts of Cananda,
Austrilia, South Africa and most European countries hold themselves free, if
they think it right to do so, to refuse to follow a previous decision. Recently,
the House of Lords in England has abandoned its rigid adherence to the rule
of stare decisis. I have no doubt that this court as the ultimate Court of
Appeal for Zambia is not absolutely bound by its previous decisions. It can,
however, only be for very compelling reasons that the court would refuse to
follow a decision of the court and only where the court clearly considered
that the previous decision was wrong. The relaxation of the rule is not its
abandonment and ordinarily the rule of stare decisis should be followed.
Abandonment of the rule would make the law an abyss of uncertainty. Mr.
Ryan urged that it was open to this court to refuse to follow a previous
decision which was not unanimous. That , in my view, is not a compelling
reason. Thixton’s case was fully argued and it has certainly not been shown
that it was clearly wrong. Indeed I, as the dissenting Judge in that case,
recognised and recognise that the result which flowed from the majority
decision was more in accord with natural justice than that which flowed
from the view of the law which I felt compelled to take. This point therefore
fails.”
 8

Again in Kasote v The People (1977) Z.R. 75, this Court not only affirmed
the importance of the principle of stare decisis to a hierarchical system of
Court (whereby lower Courts are bound to follow the latest of any superior
Court’s decision on a point) but also affirmed that being the final Court in
Zambia this Court adopts the practice of the House of Lords in England
concerning previous decisions of its own and will decide first whether in its
view the previous case was wrongly decided and, secondly, if so, whether
there is a sufficiently strong reason to decline to follow it. Again in Abel
Banda v The People (1986) Z.R. 105, this Court had to resolve which of two
conflicting decisions represented good law and having made that choice we
had to consider the principle of stare decisis. We had this to say at page114:

“The problem before us therefore is that we have made case law

which we have now realised is indefensible.The principle of stare decisis
requires that a court should abide by its ratio decidendi in past cases.Put
simplistically inorder to have certainty in the law decisions of courts should
be consistent and should not be so readily changeable as to make it at any
given time what the law is on a given issue. In order to uphold this principle
therefore past decisions should not be exploded for the sole reason that they
are wrong. Courts should stand by their decisions even if they are erroneous
unless there be a sufficiently strong reason requiring that such decisions
should be overruled. As this Court held in Kasote v The people.

The Supreme Court being the final court in Zambia adopts the
practice of the House of Lords in England concerning previous decisions of
its own and will decide first whether in its view the previous case was
wrongly decided and secondly if so whether there is a sufficiently good
reason to decline to follow it. We have already pointed out that Chibozu was
wrongly decided and the next question for us to consider is whether there is
sufficiently strong reason for us to decline to follow the decision in that case,
it is our considered view that justice was not served in Chibozu because the
symbolic scales of justice mean that just as an accused person should not be
convicted unless there is sufficient and cogent evidence proving his guilt
beyond reasonable doubt, the State also should not be made to lose a case
unless the evidence it adduces cannot, in law, support a conviction; that way
the scales are balanced. On this basis we come to the conclusion that
sufficiently strong reason does exit to warrant the overruling of Chibozu on
the basis that it is a non sequitur. We therefore hold that Chibozu is no
longer good law to the extent considered in this judgment and it is therefore
overruled.”
 9

In the instant case, the learned trial Judge had found that there was an
effective indemnity valid up to the date of revocation and there was a partial
frustration of contract. In the Vacuum Case, the learned trial Commissioner
found that the revocation of the indemnity meant that there was none given
ab initio and he found that there was no frustration of the contract; opining
to the effect that the policies of Government though resulting in casualties
could not be a frustrating event. In this case (where Counsel for the
appellant urged us to go so far as to find that there was an indemnity which
was not validly revoked) the learned trial Judge had taken the trouble to
discuss the law of indemnity in some detail. In particular reference was
made to Vol. 20 of Halsbury's Laws of England 4th Edition wherein the
creation of rights of indemnity is discussed. In the Vacuum Case, the
learned trial Commissioner mostly gave a political lecture on the
inevitability of casualties in a liberalising economic environment. Be that as
it may, this Court has already affirmed the learned trial Commissioner in the
Vacuum Case. After discussing some authorities dealing with estopppel as
well as with accord and satisfaction, we concluded (at J7 of the transcript of
the judgment) as follows:

"In the present case, the Permanent Secretary's letter offered some
indemnity but what consideration did the appellants offer to the defendants
for them to enjoy release? The facts did not show that the appellants had
offered any consideration or that there was true accord and satisfaction as
discussed in the cases already referred to. Since there was no consideration
or equitable right, the appellants cannot rely on the principle discussed in the
High Trees case. We are therefore satisfied that the learned trial
Commissioner did not misdirect himself in arriving at the conclusion that
there was no indemnity."

Was this conclusion so wrong that we must revisit the Vacuum Case and say
that it was wrongly decided? The answer appears to lie in the circumstance
that the Court had first of all to make a finding on the validity of the
indemnity since there was no direct ordinary kind of contract as such
between the borrower and the Government under which the latter would
have specifically agreed to make good a loss suffered by the former.
Indemnity, in the usual course, denotes a contract by which the promisor
undertakes an original and independent obligation to indemnity, as distinct
from a collateral contract in the nature of a guarantee by which the promisor
 10

undertakes to answer for the default of another person who is to be primarily

liable to the promisee.

Furthermore, as the learned authors of Halsbury's Laws (Vol.20) put it at

paragraph 307, rights of indemnity may arise either from contract, express or
implied, from an obligation resulting from the relation of the parties or by
statute. The decision in the Vaccum Case proceeded on the footing that the
Government was a total stranger to the contract. Unlike in that case, there
was in this case detailed oral and documentary evidence from which it
emerged that the Government was not, after all, the complete stranger it was
thought to have been. There was a term in the contract that is Clause7 (a) in
the second schedule which made the loan offer subject to the approval of the
refinancing agency as well as of the Minister of Finance. Mr. Sikatana has
drawn our attention to the role played by the Government even in the past.
The bank itself was established by statute in the words of the preamble "to
assist in the economic development of Zambia." Under the Development
Bank of Zambia Act, appointments to the most Senior Management
positions and of auditors, the directorships and the non-Governmental
shareholdings all require the approval of the Minister. Indeed under the Act,
the funds of the bank include such money as may be appropriated by
Parliament. In short, the Minister has by law oversight of the bank's
operations.The same Minister has oversight over the Bank of Zambia which
was directed to implement the decision of Government to absorb the bank's
losses through foreign exchange fluctuations. The Minister did not simply
offer to indemnify the borrowers; the Minister in fact offered to bail out the
bank itself which was then directed to pass on the benefits accruing to the
bank from such arrangement to the borrowers. The letter of 19th February,
1993 from the Ministry's Permanent Secretary to the bank was in the
following terms:

"MF/101/16/45

19th February, 1993

The Managing Director

Development Bank of Zambia
P.O Box 33955
LUSAKA.
 11

LOSSES ARISING OUT OF EXCHANGE RATE

FLUCTUATIONS: DEVELOPMENT BANK OF ZAMBIA

You will remember that last year the Minister of Finance agreed on
behalf of Government to accept all your exchange losses up to and including
1st October, 1992. It should however be understood that the above
acceptance is subject to the following conditions:

(i) This Ministry does not expect borrowers of your bank to bear
the full loss arising out of exchange fluctuations. In other words, the
benefits accruing to your bank as a result of Government's acceptance of
liability for all exchange losses up to and including 31st October, 1992,
should be passed on to your clients.
(ii) Where borrowing companies fail to meet their repayment
commitments. You should convert the outstanding debts into shares which
will be held in those companies in the name of your bank.
(iii) You should work out a capital enhancement scheme so that
shareholders including Government can contribute to strengthen your bank's
capital base.
(iv) While borrowing from international sources will be left to the
Bank of Zambia, on lending to your bank will be denominated in Kwacha.
(v) Government will not be liable to meet exchange losses arising
after the cut-off date which is 31st October, 1992.

1. In this Ministry's view, your bank should not handle smal personal
loans which should be referred to SIDO while large loans should be left with
the international community.
2. I am copying this letter to the General Manager of the Bank of
Zambia for his information and necessary action.

J.M. Mtonga

PERMANENT SECRETARY
MINISTRY OF FINANCE."

cc: General Manager

Bank of Zambia
P.O Box 30080
LUSAKA.”
 12

Some borrowers were informed of the foregoing development. A typical

example was the letter of 25th February, 1993 from the Permanent Secretary
to one Y. Zumla Managing Director of Vacuum Forming Industries involved
in the Vacuum case.

This read:

“MFAL/102/14/125

25th February, 1993

Mr. Y. Zumla,
Managing Director,
Vacuum Forming Industries Limited ,
P.O Box 32661
LUSAKA.

Dear Sir,

DBZ LOANS
I thank you for your letter dated 23rd February, 1993. I wish to
confirm that we have written DBZ requesting them to pass on the benefit
that will be derived from our decision to take over exchange losses to the
client. Kindly contact DBZ who will be in a position to brief you on the
mechanism of how this will benefit the clients who have suffered exchange
losses by servicing their loans to DBZ.
By copy of this letter the Managing Director of DBZ is being
informed to expect contact from you so that you could meet him to discuss
this matter.

Yours faithfully,

J.M. Mtonga,
PERMANENT SECRETARY (FINANCE)
cc: Mr. G. Mumba,
Managing Director ,
Development Bank of Zambia
LUSAKA”
 13

From the foregoing, it is clear that there was the necessary special
relationship between the parties to support the creation of rights of
indemnity. Our conclusion in the Vacuum case clearly appears to have
proceeded from an understandable misapprehension of the facts and the
relationship between the parties brought about by the absence of the fuller
facts, or of the oral evidence and the documents which were not placed
before the first trial Court or before our Court in that earlier case. In the light
of the fuller facts and the more detailed submissions here which have
demonstrated that Government was not a trial stranger, it is apparent that
strong ground exists for revisiting our earlier decision which proceeded from
a serious misdirection on fact induced by the non-disclosure of all the facts
which led to an erroneous conclusion of law on the validity of the indemnity
in the circumstances.There was an indemnity in the terms of the Permanent
Secretary’s letter to the bank.

The two trial Courts under consideration came to two different conclusions:
The first considered that the revocation letter by the Deputy Minister
revoked the indemnity ab initio while the second Court found that the
indemnity was valid while it lasted until revoked. We have considered the
arguments by Mr. Sikatana and Mr. Gondwe. Mr. Gondwe generally
supported the trial Court in the Vacuum case while Mr. Sikatana
commended the approach of the trial Court in the instant case but with the
submission that the indemnity could in fact not be revoked. We can
immediately reject the latter suggestion which was not supported by the
terms of the Permanent Secretary's letter. There was in that letter no
suggestion that the indemnity would be limitless in extent and duration. The
second trial Court was clearly right to find that the indemnity was valid
while it lasted and until revoked.The revocation it self followed
representations by the bank. The bank’s letter of 3rd March, 1993, was in
the following terms:

“March 3rd, 1993

Hon. Rev. D. Pule,

Deputy Minister,
Ministry of Finance,
P.O Box 50062
LUSAKA

Dear Sir,
 14

As per our discussion on Tuesday 2nd March 1993, please find

attached a paper on exchange losses incurred by DBZ and its clients and
possible solutions to the problem. Let me hasten to say that some clients
have already been informed of the Government’s decision to take-over
exchange losses up to the 31st October,1992, cut off date through the
Permanent Secretary’s office, and as such the options indicated will now be
only relevant to exchange losses accumulated as from 1st November,1992,
to date. Due to the magnitude of the exchange ate depreciation between
November 1st ,1992 and now, clients indebtedness to DBZ has gone up by
approximately the amounts that are being written off, as such the options
indicated are still relevant.

As indicated in the attached paper; the option of Government taking

over exchange losses implies that GRZ will come up with the equivalent of
exchange losses in cash to enable DBZ pay off its liabilities on its foreign
currency borrowings. Exchange losses attributable to clients up to the cut
off date are just slightly above K8.0 billion whereas those attributable to
DBZ are K2.0 billion. Thus all in all approximately K10.0 billion is
required to finance the exchange loss write off. Whereas the K2.0 exchange
loss absorbed can be apportioned amongst DBZ’s shareholders, B
shareholders are likely to accept to absorb the K8 billion attributable to
clients. The other factor which is important is the fact that in the loan
agreements, clients accepted to undertake the exchange risk and that is why
interest rates charged on loans were fixed. It might have been possible in the
process of trying to alleviate the burden suffered by the clients to convert the
loans in Kwacha and then charge interest rates with a hearing to Zambian
interest rates. This would certainly have reduced the amount that is to be
absorbed by Government.

The decision also implies that, for those clients who have paid off
their loans, in the name of equity and fairness, they will have to be refunded
that portion of their repayment which was attributable to exchange rate
variations. DBZ’s current liquidity position will not permit it to meet these
repayments and as such we will expect new cash injection from Government
to effect the decision taken.

Due to the fact that the decision has already been communicated to
clients, I am humbly requesting that you convene a meeting as soon as
possible, so that we can discuss the attached paper and come up with a
solution for exchange losses that have accrued after the 31st October,1992,
 15

cut off date as well as the modalities of effecting the decision taken in as far
as it relates to DBZ liabilities.

Yours faithfully,

GERSHOM MUMBA
cc Hon. E. G Kasonde, MP -Minister of Finance
cc Hon. D. Chitala, MP -Deputy Minister of Finance
cc Mr. J.M. Mtonga - Permanent Secretary, Ministry of Finance.”

Hon. Pule’s reply of 15th March, 1993, was in the following terms:

“MF/101/8/8/Sec
15th March ,1993.

Mr. G..M.B. Mumba,

Managing Director,
Development Bank of Zambia
10101 LUSAKA

Dear Mr. Mumba,

FOREIGN EXCHANGE LOSSES INCURRED BY DBZ AND ITS

CLIENTS
Please refer to the your letter dated 3rd March,1993, and our consequent
meeting attended by the Permanent Secretary and yourselves, regarding the
above subject. The Government has carefully looked at this long outstanding
issue and I wish to state the Government’s final policy decision in this
regard as follows:

(1) In view of the magnitude of the amount of foreign exchange losses

involved, the Government is not in a position to absorb exchange losses
incurred by DBZ and/or its clients. Current and foreseeable future
Government budget constraints do not give chance to the Government
absorption of such exchange losses. Further more, it will be contrary to
current economic policy of phasing out all subsidies, and it would be almost
impossible to convince multilateral and bilateral donor agencies on the need
to do so.
(2) Notwithstanding the foregoing, the Government as the majority
shareholder in DBZ will strive to inject fresh equity capital into the Bank to
 16

enable it generate sufficient income to cover any exchange losses that may
arise. Minority shareholders will of course be expected to match the
Government’s injection of fresh capital so as to maintain proportionate
balance in shareholding as per current DBZ Act provisions.
(3) In view of the above, DBZ is encouraged to come up with a menu of
options like the ones suggested in your paper, intended to give relief to your
clients subject to legal and other constraints, especially financial viability in
terms of profitability and debt service capability.

This now clarifies the Government’s position on the matter and you may
wish to convey this message to your clients accordingly.

Yours sincerely,

Hon. Rev. Danny C. Pule, FCCA, FZICA, FCPA: MP

Deputy Minister, MINISTRY OF FINANCE”

The Government policy referred to by Hon. Pule was indeed further borne
out by the Government’s subsequent actions such as effecting the changes to
the Bank of Zambia Act so that the Government – through the Central bank
– is no longer legally obliged to determine the parity of the Kwacha nor of
the exchange rates (contrast CAP. 360 of the 1995 Edition of the laws with
Act No. 43 of 1996). The learned trial Judge in the instant case was on firm
ground in the determination that there was for the limited duration found by
her the indemnity whose value has yet to be assessed in the Court below.

There were submissions and counter submission on whether the contract had
been frustrated by the economic liberation policies. In the view that we take,
it was inappropriate to invoke the doctrine of frustration in this case where it
could not properly be alleged that the contract had become impossible of
performance and the parties therefore discharged from further performance.
The Law Reform (Frustrated Contracts) Act governs frustration and lays
down how the rights and liabilities of the parties have to be adjusted.
Loosely, speaking, there has to be some sort of restitution which in the
present case would clearly not work. On the other hand, the learned trial
Judge must have also recognised that it would be inequitable and
unconscionable simply to have granted the bank the prayers in its suit even
if a Court were disposed to order that the property if repossessed would be in
full and final settlement, like an accord and satisfaction. We doubt very
much that such a result would be in the interests of the bank even. In
 17

ordering fresh negotiations, we presume the learned trial Judge to have been
exercising the Court’s equitable jurisdiction. It is a jurisdiction of some
antiquity. To illustrate this, we can do no better than to quote from Snell’s
Equity, 29th Edition under the heading “The Equity of Redemption”,
paragraphs No. 1 and No. 2 at page 391:

“1. Nature of mortgage at common law. By the old common law, the
ordinary mortgage was strictly an estate upon condition. There was a
feoffment of the land, with a condition (either in the deed of feoffment itself
or in a deed of defeasance executed at the same time) providing that, on
payment by the feoffer of a given sum at a time and place certain, it should
be lawful for him to re-enter. Immediately on livery of seisin being made,
the feoffee became the legal owner of the land, subject to the condition. If
the condition was performed, the feoffer re-entered; but if the condition was
not performed, the feoffee’s estate became absolute and indefeasible as from
the time of the feoffment, the legal right of redemption being then lost for
ever.

2. The equitable right to redeem. Happily, however, a jurisdiction arose

under which the harshness of the old law in this respect was softened
without any actual intereference with its principles. The courts of equity left
the legal effect of the transaction unaltered but declared it to be unreasonable
and against conscience that the mortgagee should retain as owner for his
own benefit what was intended as a mere security. They accordingly
adjudged that relief against the breach of the condition should be granted.
Thus although the mortgagor lost his legal right to redeem, he nevertheless
had an equitable right to redeem on payment within a reasonable time of the
principal, interest, and costs. At first, the common law judges strenuously
resisted the introduction of this new principle, but they were ultimately
defeated by the increasing power of equity. In their own courts, however,
they still adhered to the rigid doctrine of forfeiture, with the result that the
law relating to mortgages fell almost entirely within the jurisdiction of
equity.”

The relief which equity affords requires that a reasonable balance be struck
between the right to redeem within any extended period beyond that
stipulated in the contract and the right of the other party to the benefit of the
security in case of inexcusable default or in a hopeless case where for
instance there is in fact no reasonable prospect of the borrower ever being
able to pay. In this appeal, we heard detailed arguments and submissions;
 18

we heard how the borrower had used initiative to diversify into a different
product from that originally intended; we heard how the borrower was now
earning some money in exports. Counsel on both sides appear to have been
agreed that there was in this case a reasonable prospect of repayment of the
principle and allowable interest if a reasonable extension of time were
granted. We heard proposals by the borrower for rescheduling the payments
by making a down payment of US $100,000 and thereafter an initial monthly
instalment of US $25,000. Quite commendably, we heard from Mr.
Gondwe that the bank was no longer intent on the injurious course of
repossessing the borrower’s property and assets but suspected that the
borrower was hiding some pennies and could actually pay a bigger down
payment and bigger monthly instalments such as US $60,000. The debate
raised the prospect of this Court getting involved in running litigation, which
we do not do. In the event, we consider that the borrower herein should
begin to make the payments as they proposed before us with liberty to either
party to apply to the Court below for review of the amounts from time to
time and for any directions what should happen should there be default by
the borrower.

In addition, either party is granted liberty to apply to the Court below for the
computation of the indebtedness without a penal element (if such
computation be not agreed by the parties) and for assessment of the value of
the short – lived indemnity.

In sum, the penal element is to be expunged and time enlarged so as to

enable the borrower to pay by instalments as discussed. Save for the
variations to the extent indicated and otherwise already adjudged herein, we
affirm the learned trial Judge in this action and resile from our decision on
the point about the indemnity in the Vacuum case. We do not consider that
there is a winner or a loser in this appeal where both the appeal and the
cross-appeal are largely unsuccessful. Each party will bear their own costs
of this appeal.

Each party bears it's own cost

 19

ZAMBIA NATIONAL HOLDINGS LIMITED AND UNITED

NATIONAL INDEPENDENCE PARTY (UNIP) v. THE ATTORNEY-
GENERAL (1994) S.J. 22 (S.C.)

SUPREME COURT
NGULUBE, C.J., SAKALA, CHAILA, CHIRWA AND MUZYAMBA,
JJ.S.
S.C.Z. JUDGMENT NO. 3 OF 1994

Flynote

High Court - Juridiction of - Article 94 of the Constitution - How it should

be construed in relation to other laws governing the exercise of the
jurisdiction of the High Court
Compulsory acquisition - Constitutionality of - Compensation under the
Lands Acquisition Act - Compensation postponed till after determination of
the case

Statutory instruments - Force of - Procedure for enactment of - Cap 2 and

Article 80 of Constitution

Headnote

The appellants brought a petition in the High Court to challenge the

decision for the respondent to acquire compulsorily under the Lands
Acquisition Act the appellants' land being Stand number 10934 Lusaka
which is also known as the New UNIP Headquarters. The President
resolved that it was desirable or expedient in the itnerests of the Republic to
acquire this property whereupon the appropriate Minsiter gave notice to the
appellants of the Government's intention in that behalf and the steps and
formalities under the Act for such acquisition were commenced. The
appellants wrote to the respondent suggesting a sum of money to be aid as
compansation but as it it turned out, and as the parties specifically informed
the learned trial judge, they wished the question of compensation to be
postponed until the court had disposed of the challenge to the legality and
constitutionality of the compulsory acquisition. The petition was
unsuccessful and the appellants appealed.
 20

Held:

(i) 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

(ii) Statutory instruments only come into force in when made in

accordance with the relevant section of Cap 2 and Article 80 of the
Constitution

(iii) The LandsAcquisition Act did not contravene the spirit and intent of
Article 16(1) of the Constitution

(iv) The appellants did not discharge the burden which was on them to
demonstrate mala fides on the part of the President

(v) The acquisition here was not unlawful for want of a prior tender of
compensation

Cases referred to:

(1) Garthwaito v Garthwaito (1964) 2 ALL E.R. 233.
(2) Guaranty Trust Co. of New York v Hannay & Co. (1914-16) ALL
E.R. Rep. 224.
(3) Miyanda v The High Court (1984) Z.R. 62.
(4) Codron v Macintyre and Shaw (1960) R. & W. 416
(5) Oliver John Irwin v The people S.C.Z. Judgment No. 4 of 1993.
(6) M v Home Office (1992) 4 ALL E.R. 97.
(7) Elsie Moobola v Harry Muweza S.C.Z. Judegment No. 3 of 1991
(8) Johnson v Sargant (1918) 1 K.B. 101
(9) Harel Freres Ltd. v Minister of Housing (1986) L.R.C. (Const.) 472.
(10) Re: Pan Electronics Ltd. S.C.Z. Judgment No. 4 of 1988.
(11) Commissioner of Stamp Duties v Atwill and Others (1973) 1 ALL
E.R. 576

For the Appellant: J.B. Sakala and A.J. Mumba, of JB Sakala & Co.
For the Respondent: A.G. Kinariwala, Principal State Advocate

_________________________________________
 21

p24

Judgment

NGULUBE,C.J.: delivered the judgment of the court.

The appellants brought a petition in the High Court to challenge the decision
of the respondent to acquire compulsorily under the Lands Acquisition Act
the appellants' land being Stand number 10934 Lusaka which is also known
as the New UNIP Headquarters. The President resolved that it was
desirable or expedient in the itnerests of the Republic to acquire this
property whereupon the appropriate Minsiter gave notice to the appellants of
the Government's intention in that behalf and the steps and formalities under
the Act for such acquisition were commenced. The appellants wrote to the
respondent suggesting a sum of money to be paid as compensation but as it
it turned out, and as the parties specifically informed the learned trial judge,
they wished the question of compensation to be postponed until the court
had disposed of the challenge to the legality and constitutionality of the
compulsory acquisition. The case has proceeded on that basis both below
and here. The petition was unsuccessful and so this appeal. We propose to
deal with the various legal issues and challenges in this appeal in the order
in which they were argued before us.

Shortly after the institution of the proceedings, the appellants applied by

summons for an interlocutory injunction to restrain the respondent, the
servants or agents or the State from taking possession or occupation of, or
entering upon, the appellants' property under discussion pending trial of the
cause. The learned trial judge ruled that he was precluded from making an
order of injuction by s.16 of the State Proceeding Act, Cap. 92. This Section
reads:

"16. (1) In any civil proceedings by or against the State the court shall,
subject to the provisions of this Act, have the 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
 22

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 State."

In the judgment after trial and though the remarks in that behalf were all
obiter

p25

and immaterial to the decision, the learned trail judge decided to revisit the
question of injunctions against the State. He found that, although he would
still have refused the interlocutory injunction on the merits (on the basis of
adquacy of damages), he had changed his mind on the correctness of his
earlier ruling based on s.16 of the State proceedings Act. He accepted the
argument by Mr. Sakala that in a constitutional case, S.16 of that Act
contravenes Articles 28(1) and 94(1) of the constitution which is the
supreme law. Article 28(1) of the constitution reads:-

"28.(1) Subject to clause (5), if any person alleges that any of the
provisions fo Articles 11 to 26 inclusive has been, is being or is likely to be
contravened in relation to him, then, without prejudice to any other action
with respect to the same matter which is law-fully available, that person may
apply for redress to the High Court which shall:

(a) hear and determine any such applicantion

(b) determine any question arising in the case of any person which is
referred to it in pursuance of clause (2);
 23

and which may, make such order, issue such writs and give such
directions as it may consider appropriate for the purpose of enforcing, or
securing the enforcement of, any of the provisions of Articles 11 to 26
inclusive."

Article 94(1) of the constitution reads:-

"94 (1) There shall be a High Court for the Republic which shall
have, except as to the proceedings in which the Industrial Relations Court
has exclusive jurisdiction under the Industrial Relations Act unlimited or
original jurisdiction to hear and determine any civil or criminal proceedings
under any law and such jurisdiction and powers as may be conferred on it
by this Constitution or any other law.

The learned trial judge expressed himself on the point in the following
terms:

"My mind has been troubled in this way: The constitution is the
Supreme Law of the Country. It has enacted above that the High Court 30
shall have unlimited jurisdiction. It has also enacted under Article 28(1) (b)
that the Court "May make such orders, issue such Writs and give such
directions as it may consider apropriate for the purpose of enforcing or
securing the enforcement of, any of the provisions of Articles 11 to 26.

As I see it the provisions of Section 16 (1)(i) of the State proceedings

Act have undoubtedly contravened the provisions of Articles 28(1)(b) and
94(1) of the constitution by limiting the powers of the court. The Provisions
are unconstitutional and consequently null and void."

Although the learned trial judge finally came down in favour of the
appellants on this narrow point, they have advanced as their first ground of
appeal before us

p26

that the court below was in error when in the earlier ruling it refused to grant
an interioucutory injunction on the basis that S.16 of Cap. 92 barred such an
order. The learned trial judge is now the Deputy Chief Justice of this
Country and it is therefore with much regret that we find ourselves
constrained to disagree with the conclusion reached by such a senior judge.
 24

However, we have to seize the apportunity presented by the ground of

appeal to reverse the nullification of s.16(1)(i) of Cap. 92, a pronouncement
which even Mr. Sakala, for the appellants, does not support.

In the passage from the judgment which we have quoted, much was made of
the expression "unlimited jurisdiction" and the section was struck down
allegedly "for limiting the powers of the court". The reasoning below is
insupportable. In the first place, it revealed a miscenception about the word
"juristiction", especially when described as "unlimited jurisdiction." It is, in
our considered opinion, necessary to first understand this troublesome word
"jurisdiction" which appears no less than three times in Article 94(1) of the
constitution. We recall a useful passage from the judgment of DIPLOCK,
L.J., in Garthwaite v Garthwaite (1) at pages 241 to 242 where he said:

"The High Court is the creation of statute, and its juristiction is

statutory. As was pointed out by PICKFORD,L.J. in Guaranty Trust Co. of
New York -v- Hannay & Co. at page 35 the expression "jurisdiction" of a
court may be used in two different senses, a stick sense (which he regarded
as the only correct one) and a wider sense. I think, with respect, that he
defined the strict sense too narrowly, for it would not embrace the ocurt's
lack of jurisdiction to entertain a suit based on the personality of a party, as
for instance against a foreign severeign or ambassador. However, it is
important for the purposes of the present appeal to distinguish between the
two senses in which the expression is used. In its narrow and strict sense,
the "jurisdiction" of a validly constituted court cannotes the limits which are
imposed on its power to hear and determine issues between persons seeking
to avail themselves of its process by reference (i) to the subject-matter of
the issue, or (ii) to the persons between whom the issue is joined, or (iii) to
the kind of relief sought, or any combination of these factors. In its wider
sense it embraces also the settled practice of the court as to the way in which
it will exercise its power to hear and determine issue which fall within its
"jurisdiction" (in the strict sense), or as to the circumstances in which
it will grant a particular kind or relief which it has "jurisdiction" (in the strict
sense) to grant, including its settled practice to refuse to exercise such
powers or to grant such relief in particular circumstances. This distinction
between the strict and the wider meaning of the expression 40 "jurisdiction"
was of little importance in the case of the superior courts so long as they did
not owe their origin to statute, for there was no need to distinguish between
non-existence of a power and settled practice not to exercise an existing
power. However, in the case of courts created by statute, as the Supreme
 25

Court of Judicature, comprising the High Court and the Court of Appeal, has
been since 1873, the court has no power to enlarge its jurisdiction in the
strict sense, but it has power

p27

to alter its practice proprio motu within the limits which it imposes on itself
by the doctrine of precendent, subject, however, to any statutory rules
regulating and prescribing its practice and procedure made pursuant to any
rule-making power contained in the statute."

We would like to associate ourselves with the foregoing which we

respectfully adopt. We also recall what was said in Miyanda v The High
Court at page 64:

"The term "jurisdiction" should first be udnerstood. 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. The limits of authority of
each of the courts in Zambia are stated in the appropriate legislation. Such
limits may relate to the kind and nature of the actions and matters of which
the particular court has cognisance or to the area over which the jurisidction
extends, or both. Faced with a similar question of jurisdiction, two of their
Lordships in Codron v Machintyre and Shaw (4), had this to say:

Tredgold, CJ., cautioned, at page 420.

"It is important to bear in mind the distinction between the right to

relief and the procedure by which such relief is obtained. The former is a
matter of substantive law, the lattter of adjective or procedural law."

Briggs, F.J., said, at page 433:

"Confusion may arise from two different meanings of the word

"jurisdiction". On an application for mandamus in England the King's Bench
division may, because of a certain fact proved say "There is no jurisdiction
to grant mandamus in a case of this kind." That refers to an obstacle of
substantive or procedural law which prevents the success of teh application,
but not be any limits on the general jurisdiction of the court to hear and
determine the application."
 26

I think it is important to understand the various aspects of jurisdiction to

which I have referred."

We have no reason to disagree with the foregoing.

In order to place the word "unlimited" in Article 94(1) in its proper

perspective, the jurisdiction of the High Court should be contrasted with
then of lesser tribunals and courts whose jurisdiction in a cumulative sense is
limtied in a variety of ways. for example, the Industrial Relations Court is
limited to cases under a single enactment over which the High Court has
been denied any original jurisdiction. The Local Courts and Subordinate
Courts are limited as to geographical area of operation, types and sizes of
awares and penalties, nature of causes they can entertain, and so on. The
jurisdiction of the High court on the other hand is not so limited; it is
unlimited but not limitless since the court must exerciseits jurisdiction in
accordance with the law. Indeed, Article 94(1) must be read as a whole
including phrases like "under any law and such jurisdiction and powers as
may be conferred on it by this constitution or any other law." It is
inadmissible to contrue the word "unlimited" in vacuo and then to proceed to
find that a law allegedly limiting the powers of the court is unconstitutional.
The

p28

expression "unlimited jurisdiction" should not be confused with the powers

of the High Court under the various laws. As a general rule, no cause is
beyond the competence and authority of the High Court; no restriction
applies as to type of cause and other matters as would apply to lesser courts.
However, the High Court is not exempt from adjudicating in accordance
with the law including complying with procedural requirments as well as
substantive limitations such as those one finds in madatory sentences or
other specification of available penalties or, in civil matters, the types of
choice of relief or remedy available to litigants under the various laws or
causes of action. We would like to conclude this part with an observation
which we made in Oliver Hohn Irwin v The People (5) a case dealing with
bail and since overruled by statutory amendments) in answer to the
misconception harboured by the same learned trial judge as to the purport of
Article 94......
 27

"The question for the juridiction of the High Court is of course

irrelevant. 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. If, contrary to our finding, (S.1231) (of the
Criminal Procedure Code) did infact limit the powers of teh High Court, it
would be bound by such limitation." (words in bracket added for the sake of
clarity).

In the next place we wish to acknowledge that there is a growing school of

thought against the continued existence of state immunity against injunctive
relief and other coercive orders: See, for example, de smith's Judicial
Review of Administrative Action, 4th Edition, from page 445. However, the
underlying rationale, particularly the difficulties of enforcment by
compulsory process of orders and judgments against the State make it
unrealistic to expect that the State can be proceeded against in all respects as
for a subject. Simon Brown, J. delivered a most useful review of this
problem in M -v- Home Office (6) where, on appeal to the Court of Appeal
one of their Lordships suggested an ingenious way round the problem by
finding that as Minsiters and civil servants are accountable to the law and
to the courts for their personal actions, they can be proceeded against for
contempt of court if they disobey or frustrate an order of the court. For our
part, what is certain is that it was not true (and Mr. Sakala properly so
conceded) that, in the absence of an order of interiocutory injunction, no
other useful orders could have been made against the State in order to
effect a suspension of the compulsory acquisition pending trial and, in case
of breach, to exact compliance. If, for example, comliance with fairly
coercive perrogative orders like mandamus and others can be exacted, so can
other suitable orders (not amounting to prohibited reliefs) envisaged by
Article 28(1).

We have dwelt on the first ground at some length but offer in mitigation that
it was necessary to explain why we have reversed the learned trial judge and
restored Section 16(1)(i) which is neither unconstitutional nor null and void
for any of the reasons advanced in the court below.

The second ground of appeal alleged that the learned trial judge erred in law
and in fact when he decided that the Lands Acquisition Act did not
contravene the spirit and intent of Arctile 16(1) of the constitution. This
Arcticle reads:
 28

p29

"16 (1) Except as provided in this Article no property of any

description shall be compulsorily taken possession of, and he interest in or
right over property of any description shall be compusorily acquired unless
by or under the authority of an Act of parliament which provides for
payment of adequate compensation for the property or interest or right to be
taken possession of or acquired."

One of the appellants' arguments at the trial which has not been repeated
with any enthusiasm here had been that any compulsory acquisition under
sub-article (i) had to fit into one of the spigeon holes" sub-article (2). Sub-
article (2) reads:

"(2) Nothing contained in or done under the authority of any law shall
be held to be inconsistent with or in contravention of clause (i) to the extent
that it is shown that such law provides for the taking possesssion or
acquisition of any property or interest there in or right there over."

and goes on to list numerous situatuins such as satidfaction of any tax,

execution of judgments or orders of the court, and so on. Article 16(1)
clearly states the general rule, that is, the acquisition must be under a law
which must provide for adquate compensation. Subarticle (2) on the other
hand goes on to give exceptions to, and not categories of, the general rule. It
deals with situations where an involuntary loss of property could take place
even without adequate or any compensation. We see no need for a strained
and exotic construction of this straight forward Article in the manner
attempted, and properly rejected, at the trial.

Before this court, Mr. Sakala's arguments were to this effect: Prior to the
promulgation of Statutory Instrument number 110 of 1992 published on 30th
July, 1992, (long after the commencement of the suit) under which the
president, in the exercise of extraordinary powers granted by S.6(2) of the
constitution of Zambia Act, number 1 of 1991, effected amendments to the
Lands Acquisition Act, Cap. 296, this last mentioned Act was at variance
with the current constitution in two important respects. In conformity with
the old constitutional regime, the Lands Acquisition Act before the
amendments required disputes as to compensation to be referred to the
National Assembly when the current constitution ordains that they be
referred to the Court. Again, the unamended law simply referred to
 29

"compensation" while the present constitution requires "adequate

compensation." The submission was that Cap. 296 was thus obsolete and in
contravention of Article 16(1) of the constitu- tion. Section 6(1) and (2) of
the Constitution of Zambia Act, number 1 of 1991, read:

"6 (1) Subject to the other provisions of this Act, and so far as
they are not inconsistent with the Constitution, the existing laws shall
continue in force after the commencement of this Act as if they had been
made in pursuance of the Constitution, but shall be construed with such
modifications, adaptations, qualifications and exceptions as may be
necessary to bring them into conformity with the Constitution."

(2) The President may by statutory instrument at any time within two
years of the commencement of this Act, make such amendment to any
existing law as may appear to him to be necessary or expedient for bringing
that law into conformity with the provisions of this Act or the Constitution
or otherwise for giving effect or enabling effect to be given to those
provisions."

p30

In our considered opinion, even assuming that Statutory Instrument No. 110
of 1992 had not been passed, subsection (1) of Section 6 which we have
quoted affords a complete answer to Mr. Sakala's arguments. It obliges
that existing laws be read so as to be confomable to the constitution so that
the word "adquate" to qualify the compensation and the reference of
disputes to the court rather than to the National Assembly would have had to
be imported into Cap. 296. This Act was not unconstitutional for any of the
reasons advanced by the appellants. We do not understand the learned trial
judge to have found that the Act was saved only by the late amendments
effected through the Statutory Instrument but if indeed this was the finding,
then we have no difficulty in affirming as we have done that Section 6(1) of
Act No. 1 of 1991 had already catered for this and any other existing laws
in need of adaptation, modification and so on. Of course, to any extent that
any existing law could not be made to conform, it would be void to the
extent of any such inconsistency, as provided by Article 1(2) of the
constitution.

The appellants did not dispute the power of the President under s.6(2) of Act
number 1 of 1991 to amend laws. They argued, however, that since the
 30

amendments affected fundamental rights, only Parliament could legislate on

such matters when Article 79 would have had to be complied with, Article
79 deals with alterations to the constitution and the special procedures
needed for this, including a national referendum to endorse changes to the
part dealing with fundamental rights. With respect to learned counsel for
the appellants, the Lands Acquisition Act is not part of the Constitution and
is, on the contrary, simply a law envisaged under the constitution for
depriving persons of their fundamental right of owning property. We agree
with Mr. Kinariwala for the State that the Statutory Instrument was
amending an ordinary enactment, that it Cap. 295, and had nothing
whatsoever to do with amendments to the constitution.

The second leg of the argument was that the statutory instrument's effective
date could not be lawfully backdated so as to adversely affect the appellants'
rights regarding the quantum of compensation. Rule 1(2) of the Statutory
Instrument reads:-

"1.(2) This Order shall be deemed to have come into operation on the
30th August, 1991."

In Rule 3 of the order, S.12 of the Lands Acquisition Act (the Section setting
out the principles governing compensation) was amended so as to permit
any assessment of compensation to take into account..... by deduction no
doubt ........ any money used in developing the land which was donated by
the Government and any companies which do not certify that their
contribution was specifically made for the use and benefit of the registered
owner. The evidence showed that the bulk of the money, if not all, used to
build the imposing complex the subject of this case came from Government
grants approved by the legislature during the One Party era. We shall return
to this aspect under another ground of appeal. However, in relation to the
backdating of the Statutory Instrument's effect, Mr. Sakala relied on Article
80 of the constitution which provides for

p31

publication and the coming into force of statutory instuments. He also

relied on s.19 of the Interpretation and General provisions Act, Cap. 2.
Subsection (1) which is relevant to this discussion reads:

"19. (1) Subject to the provisions of this section...

 31

(a) the date of commencement of a statutory instrument shall be

the date of its publication in the Gazette or, where a later date is specific
therein, such later date; and
(b) every statutory instrument shall be deemed to come into for
immediately on the expiration of the day next prededing the date of this
commencement."

The law is clear and Mr. Kinariwala's argument that this extraordinary
statutory instrument should be treated on the same footing as an enactment
by parliament can not be entertained. However, the question is whether a
statutory instrument can legally have or be given retroactive effect. We bear
in mind that in terms of s.21 of Cap. 2, a statutory instrument becomes part
of the written law and the question whether it is intended to have
retrospective effect is to be answered by the application of principles
identical with those by which the question is determined in relation to
statutes. We have lifted these sentiments out of paragraph 747 of
Halsbury's laws of England, volume 86, 3rd Edition, A perusal of paragraphs
644 and 647 of the same reference book supports the view that there is
nothing objectionalbe to written laws having retroactive effect, in relation to
pending litigation and existing causes of action, when they do not affect
substantive rights or impose new liabilities or when the new provisions can
be classed with provisions as to procedure only, In Elsie Moobola v Harry
Muwezwa, (7 we considered the introduction of new remedies as falling to
be classed with provisions as to procedure so that the presumption against
retrospective effect did not apply to the distribution of the estate of a
deceased husband which was to be effected after the coming into force of a
new enactment which was not in operation when he died.

Two points emerge from what we have been saying. The first is that
statutory instruments can only come into force in the manner ordained by
the relevant section of Cap. 2 and Article 80 of the constitution. Citing
Johnson v Sargant (8) as one of their authorities Keir & Lawson, the learned
authors of Cases in constitutuonal Law, 4th Edition, have this to say at page
25;

"But there is this difference in the operation of statutes and acts of

subordinate legislation: a statute takes effect on the earliest moment of the
day on which it is passed or is declared to come into operation, while orders,
regulations and other acts of subordinate legislation take effect only when
 32

they are published to the outside world. This is a reasonable distinction, for
whereas the passing of a statute is invariably presended by prelonged and
open discussion, many acts of subordinate legislation are imposed on the
public without previous warning (see Johnson v. Sargant, (1918) 1 K. at p.
103, and Statutory Instuments Act, 1946 S.3)"

p32

We believe the foregoing answers the point about the coming into force of
the statutory instrument under discussion. The second point is whether the
Statutory instrument having come into operation only when it was
published, can have effect on pending litigation such as this case where the
issue of compensation has not been litigated or adjudicated.

Contrary to the appellant's submissions, the issue of compensation which has

not been litigated relates to a remedy on new principles of assessment and
the amendments effected to the Lands Acquisition Act in such event will
apply in accordance with the reasoning in the Moobola (7) case. In any
event the application of the new principles of assessment can only be
prospective on the facts of this case although they will apply to an existing
cause of action. It will not be unlawful to make the deductions now
provided for. As will shortly appear when we come to the fourth ground of
appeal, the deductions can not be resisted on other grounds to be discussed
in a moment. In sum, we are satisfied that the lands Acquisition Act did not
contravene the spirit and intent of Article 16(1) of the Constitution as
alleged in the second ground of appeal. On the contrary, if we take the
liberty to borrow from the language of the headnote in Harel Freres Ltd v
Minister of Housing (9) a case from Mauritius - the procedure for the
compulsory acquisition of land in Zambia prescribed by the Lands
Acquisition Act gives faithful effect to the spirit and intent of Article 16(1)
of the constitution. It gives the landowner recourse to the courts to
challenge the legality and constitutionality of the compulsory acquisition
and, in default of agreement, the question of compensation can also be
referred to the course. The ground of appeal in this behalf is unsuccessful.

The third ground of appeal alleged error on the part of the learned trial judge
when he held that the compulsory acquisition of the appellants' property had
not been done in bad faith. it was not in dispute that the Lands Acquisition
Act gives the power to the President to resolve in his sole judgment when
and if it is desirable or expedient in the interests of the Republic to acquire
 33

any particular land. Quite clearly, a provision of this type does not mean
that the President's resolve can not be challenged in the courts both as to
legality and other available challenges whereby arbitrariness and other vices
may be checked. There was no dispute on the law that the exercise of
statutory powers could be challenged if based on bad faith or some such
other arbitrary, capricious or ulterior ground not supportable within the
enabling power.

The appellants alleged that the acquisition was based on an ulterior motive
or an intent simply to punish the appellants and they relied on the evidence
of two senior members of the present ruling party, who confirmed that it was
the publicly stated intention of the MMD party even before it ascended to
power that it would retrieve properties acquired with public funds so as to
benefit the people of Zambia as a whole. The learned trial judge found that,
far from demonstrating bad faith, the MMD had demonstrated good faith to
the extent that they did not plan to take away indiscriminately all the
appellants' properties but only those acquired or built with State money. The
simple answer to this ground was that the appellants did not discharge the
burden which was on them to demonstrate mala fides on the part of the
President. Their additional argument that the backdating of the statutory
instrument already discussed showed such

p33

bad faith can not persuade us to their point of view. The Statutory
Instrument was issued and amendments to the Lands Acquisition Act
effected under powers lawfully available to the President and the desire
evinced therein to obtain full credit for State funds utilized when computing
the amount of compensation demonstrated, in our considered opinion, the
highest regard for the interests of the Republic which would otherwise be
called upon to keep on paying several lots of public money when the State
had received no valuable or any consideration for the large contribution
originally made to the construction of the Complex.

The fourth ground of appeal alleged error on the part of the learned trial
judge when he decided that a grant made by parliament could be retrieved
especially grants made to UNIP "if it can be shown that the sovereign or
Parliament that granted it was corrupt or that donations were made in
circumstances bordering on duress or undue influence." The argument was
that a grant, like a gift, once given can not be retrieved. Mr. Sakala
 34

submitted that there could have been no undue influence in this case because
ofthe intervention of an independent parliament which authorised the grants.
The learned trial judge had, in dealing with this case, made a lot of
gratuitous and uncomplimentary political remarks against the appellants. he
had at one point in the judgement specifically warned that he intended to go
astray and did so with a vengeance and in unfortunate language, prompting
Mr. Sakala to claim that his clients had not had a fair trial. All litigants are
entitled to courteous treatment, However, we do not see that the trial was
necessarily unfair especially that the issues were largely legal ones to be
decided on the law. Thus, although there was no evidence to support an
allegation of corruption, the point about undue influence was quite valid. As
we pointed out in Re pan Electonics Ltd. (10) where there is a relationship of
trust and confidence, and inexplicably large gifts are made, the presumption
of undue influence will be rebuttable only on proof of full, free and informed
thought on the part of the donor. It can not be argued that gifts can never be
retrieved since there are exceptions, such as undue influence, which can
vitiate the gift if the donor who had acted to his prejudice repents of the
transaction. The evidence on recard shows that the appellants were in a
position to and did dictate to the Government of the day to transfer to
themselves the land in question which had previously been allocated to
certain Minstries. We take judicial notice that, during the One Party era,
UNIP controlled and formed the legislature and the Government. Even the
first appellant enjoyed a special status as evidenced by amendments to the
Income Tax Act introduced by Act No. 12 of 1982 and Act No. 14 of 1987,
both of which have since been replaces by Act No. 11 of 1992. The 1982
Act emended S.41 of CAP. 668 specifically in relation to donations for the
construction in Lusaka of the eadquarters of the United National
Independence party which were deductible as charitable donations. The
1987 Act added Zambia national holdings Ltd. to the list of organisations
whose income was exempt from tax. In truth, there was between the second
appellant and the Government the plainest and clearest fiduciary relationship
which raised a presumption of undue influence so strong that it could be
rebutted only on the strongest evidence. The intervention an "independent"
Parliament which was formed by the second appellant to authorise the
Government also formed by the second appellant to make the large
donations for

p34
 35

which there was no quid pro quo of any kind can not conceivably be
regarded as evidence rebutting the presumption and the irrefutable fact of
undue influence. As long as there was any sort of control by the ruling Party
over the Government and Parliament, the last two could not be regarded as
having been in a position to form an entirely free and independent unfettered
judgment. The gift or the grant in this case is recoverable on behalf of the
Republic quite independently of the principles of assessment under the
Lands Acquisition Act and when coupled with those principles, the case for
taking the Government donations into account when computing the
compensation payable is, in our most considered view, unanswerable and
unassailable. Because it is unnecessary for the decision here, we have
refrained from discussing the possibility that there was also a resulting trust
on the facts disclosed.

In any case, we consider that this is not unreasonable to expect that any
political party forming the Government and having the control of public
funds will consider itself at doing so in trust for the people of this country
and for their common advancement benefit. The fourth ground of appeal
also fails.

The fifth ground of appeal read that "the learned trial judge erred and
misdirected himself in law when he ruled that the provisions of S.11(4) of
the Lands Acquisition Act which require that possession of the land in
dispute can only be taken after payment of just compensation into court were
not breached by the respondent who entered the premises without fulfilling
that condition precedent". The learned trial judge infact held the view that
the appellants were correct in contending that the tender of compensation
was a condition procedent to the taking of possession but found that there
was no need for such extra payment when the complex had been constructed
with Government money.

Under S.11 of the Lands Acquisition Act which sets out the procedures
thereof, Subsection (1) deals with disputes other than one relating to
compensation; subsection (2) provides for disputes as to the amount of
compensation to be referred to the court; subsection (3) which talked about
the finality of any compansation determined by the National Assembly was
repealed by statutory instrument No. 110 of 1992; while subsection 94) and
its proviso reads....
 36

"(4) The existence of any dispute as aforesaid shall not affect the
right of the President and persons authorised by him to take possession of
the property:

Provided that where a dispute exists as to the amount of compensation

or the right to acquire the property without compensation, possession may be
taken only after payment of the amount regarded by the Minister as just
compensation........

(i) in the case of a dispute as to the amount of compensation, to the

person entitled to compensation (or into court if the identity of such person,
or any question of apportionment, is also in dispute);

(ii) in the case of a dispute as to the right to acquire the property

without compensation, into court."

At first glance, the proviso relied upon makes curious reading since it seems
to undermine the substantive provision. However, guided by the attitude
adopted

p35

by the Privy Council in Commissionr of Stamp Duties v Atwill and Others

(11) which we have no reason to discount, we too consider that it is very
frequently the function of provise merely to limit or qualify rather than to
add to the substantive provision. However, there may be situations where a
proviso will not necessarily have that restricted effect. Having examined s.
11(4) against the packared of the scheme under the Act for the resolution of
disputes, we are satisfied that the proviso should be construed as having
qualified the substantive provision so as to introduce a procedural condition
presendent whenever there is a dispute. However, it is also clear that the
existence of a dispute in fact is a sine qua non for the invocation of this
proviso. On the facts of this case - and Mr. Sakala was constrained to
concede that the whole argument may have been a moot point - there was no
dispute between the parties or before the court concerning the amount of
compensation within the intention of s.11. The parties had neither agreed
nor disagreed on any sum of money and they specifically requested the court
not to go into the question of compenstion which was postponed until after
the determination of the challenge based on legality and constitutionality. In
any event, it is unnecessary for the purpose of this judgment to consider
 37

what would be the result if possession were taken without a prior tender of
compensation or if the State contemplated an acquisition without
compensation since no such dispute exists in this case. The learned trial
judge was on firm ground in his conclusion, though not in his reasons for the
conclusion. The acquisition here was not unlawful for want of a prior tender
of compensation.

The sixth and last ground of appeal related to the order for costs awarded
against the appellants. Undoubtedly, this case raised constitutional issues of
general importance and the practice in this court has been to depart from
the general rule of costs following the event when the litigation has made a
significant contribution of public importance particularly on issues which
came before the court for the first time. We agree with the appellants that
these considerations ought to ahve weighed in favour of the practice referred
to. We allow this ground of appeal and set aside the order for costs made
below.

In sum., the appeal is unsuccessful but for the reasons just given each side
will bear its own costs both here and below.

Appeal dismissed.
 38

BONAVENTURE BWEUPE v THE ATTORNEY-GENERAL, AND

ZAMBIA PUBLISHING COMPANY LIMITED, AND TIMES
NEWSPAPERS ZAMBIA LIMITED (1984) Z.R. 21 (H.C.)

HIGH COURT
SILUNGWE, C.J.
29TH MAY 1984
(CASE NO. 1978/HP/466)

Flynote

Tort-libel - Fair Condiment - Apology demanded from Plaintiff - Effect of on

defence of fair comment.

Headnote

The plaintiff was a High Court judge who delivered a ruling in a case heard
in open court to the effect that UNIP special constables did not exist in law.

Reacting to that ruling, the then Minister of Home Affairs under whose
auspices the special constables fell, made certain statements which were
published by the second and third defendants. In the said publication the
second defendant included the Minister's demand for an apology from the
plaintiff. The third defendant did not include this in its publication of the
Minister's reaction.

The plaintiff contended that the words spoken by the Minister and repeated
by the second and third defendants were defamatory of him. The defendants
argued that the words complained of amounted to fair comment, noble
without malice, upon a matter of public interest, namely, a ruling delivered
by the plaintiff in his capacity as a judge of the High Court.

Held:

(i) A demand for apology from a judge or judicial officer goes beyond
the defence of fair comment.

(ii) It is totally improper that a member of the public should take upon
himself to call upon a judge or any judicial officer acting in the
 39

exercise of his judicial function to apologise to him, no matter how

wrong that judge or other judicial officer may be.

Cases cited:
(1) The People v R. B. Chimbavi and Others, HP/122/1974.
(2) Sim v Stretch [1936] 52 T.L.R. 669.
(3) Frederick Kunongana Mwanza v Zambia Publishing Company
Limited, (1981) Z.R. 234.
(4) Slopes v Sutherland, cited from House of Lords, Printed cases, 1924,
at p. 375.
(5) Merivale v Carson, [1887] 20 Q.B. 280 at p. 281.
(6) R v Russell, Unreported, December 2, 1905, cited in Fraser's Law of
Libel (7th Edn.) at p. 108.
(7) Andre Paul Terence Ambard v The A-G of Trinidad and Tobago,
[1936] All E.R. 704.

Other works referred to:

Halsbury's Laws of England (4th Edn.) Vol. 28, para. 131.
Gatley on Libel and Slander, (8th Edn.) para. 728.

For the first defendant: A. M. Kasonde, Principal State Advocate.

For the second defendant: M. S. Bander, of Chigaga and Company .
For the third defendant: J. H. Jearey, of D.H. Kemp and Company.

___________________________________________
Judgment

SILUNGWE, C.J.: delivered the judgment of the court.

This is an action for libel brought by the plaintiff, who was at the material
time, and, who still is, a judge of the High Court in the Republic of Zambia.
The action is against the first defendant - The Attorney- General who is
being sued under the State Proceedings Act; the second defendant-the
Zambia Publishing Company Limited-the proprietor and publisher of the
Zambia Daily Mail and the third defendant - Times Newspapers Zambia
Limited. The words complained of appeared on the front pages of the
Zambia Daily Mail and the Times of Zambia of February 17, 1975 which the
plaintiff claims were falsely and maliciously printed and published, or
 40

caused to be printed and published, In those papers. Those words are set out
in paragraph 3 of the Statement of Claim and are reproduced here below:

"The Zambia Daily Mail

The Minister of Home Affairs, Mr Aaron Milner has demanded an
apology from the Lusaka Judge Mr Justice Bonaventure Bweupe

p23

for saying that UNIP special constables were not recognised by the
law. Mr Milner said in Lusaka yesterday the judge was either misinformed
or had not read his law volumes properly. 'The President directed that we
should form the special constabulary to help eradicate crime. Can you
imagine a Head of State praising something which is illegal.' Mr Milner
asked amid shouts of 'Shame, shame' from the leaders. 'Special constables
exist by law and an officer in charge of police is given authority to have,
under his charge, these constables. In fact they were there even during
colonial days,' he added. The judge is learned and should know the law to
give the right judgment but I am shocked to read his remarks in the press and
I demand an apology from Judge Bweupe,' he said."

"The Times of Zambia

The Minister has criticised Lusaka Judge Mr Justice Bonaventure
Bweupe for his 'ignorance' of the legality of special constables. He said the
judge should have done his homework before making such a misleading
statement. 'It is unfortunate for a judge to say that the law does not recognise
the existence of special constables because, under the Police Act, a police
officer can appoint a special constable to help him carry out his duties,' he
said. According to chapter four, section 10 of the Police Ordinance:

'Every special constable under this ordinance shall have the sane
powers, privileges and protection and shall be liable to perform the same
duties and shall be amenable to the same penalty and to be subordinate to
the same authority as police officers."

The Statement of Claim concludes in paragraph 4 and 5 as follows:

 41

4. By the said words the defendants meant and were understood to mean
that the plaintiff was not a fit and proper person to hold the office of a High
Court Judge in the Republic of Zambia.
5. The plaintiff has in consequence been seriously injured in his
character, credit and reputation and in the way of his said Office and has
been brought into public scandal, odium and contempt."

All the three defendants denied in their respective defences that the words
complained of bore or were understood to bear, or were or are capable of
bearing, the meaning alleged in paragraph 4 of the Statement of Claim or
any other meaning defamatory of the plaintiff and that the words complained
of are fair comment, made without malice, upon a matter of public interest,
namely, a ruling delivered by the plaintiff, in his capacity as judge of the
High Court, at Lusaka, on February 14th, 1975, in the case of The People v
R.B. Chimbavi and Others, (1).

p24

The history of this action may be shortly stated. In February, 1975, a Mr

R.B. Chimbavi and three others appeared before the plaintiff, in his capacity
as puisne judge, on a criminal charge of aggravated robbery. At the end of
the case for the prosecution, the plaintiff made a ruling in which he found
that the identity of the four accused persons had not been established, and
consequently, found that they had no case to answer and acquitted them.
During the course of his ruling, he said that Gideon Daka, PW3 in that case,
together with two special constables, had conducted an illegal search of a
house belonging to the first accused in his absence, and that they had taken
therefrom, and conveyed to a police station a bundle of goods, some of
which were said to be part of the property stolen during the commission of
the aggravated robbery.

In the last but one paragraph of his ruling, the plaintiff said:

"May I warn the so called Special Constables that they did not exist in
law. The law does not recognise their existence because they acted outside
the ambit of its intendment. They have no powers to search other people's
houses without a search warrant. Indeed they can assist the Police in the
detection of crime just in the same way as any citizen can, but illegal acts
would expose them to prosecution."
 42

Two days later, that is, on February 16th, 1975, Mr Aaron Milner, then
Minister of Home Affairs, addressed Party officials drawn from all over
Lusaka at the Twentieth Century Cinema in the course which he uttered the
words complained of. Those words have not been disputed in the pleadings.

In his evidence, the plaintiff said that, when he read the passages referred to
in both the Zambia Daily Mail and the Times of Zambia of February 17th,
1975, he was shocked and demoralised and that he collapsed he started
sweating and was on the verge of shedding tears because he felt a serious
crisis was imminent. He explained that, by referring to "the so called Special
Constables. . ." he meant that they had "acted outside the provisions of the
law and that, as such, they were not Special Constables in the eyes of the
law,"

He said that, at the time of the ruling referred to above, he was familiar with
sections 48, 49 and 52 of the Zambia Police Act. Cap. 133, which provided
for the appointment and the functions of special constables. And so, he did
not question the appointment of special constables as the law relating thereto
was very clear.

The plaintiff conceded that the following sentence in his ruling:

"May I warn the so called Special Constables that they did not exist in
law", when read in isolation, was capable of being interpreted to mean that
special constables did not exist. He said, however, that when the paragraph
containing that sentence was read as a whole, "It would not give two
interpretations"

When cross-examined by Mr Banda, on behalf of the second defendant, the

plaintiff said, inter alia that if he were to hear today a case factually similar
to the one which gave rise to his ruling, he would repeat

p25

the ruling, save that he would now be more careful to quote relevant sections
of the law so as not to make the ruling ambiguous and thereby forestalling
lawyer's criticism of deficiency in the ruling.

When Mr Kasonde, on behalf of the first defendant, and, Mr Jearey on

behalf of the third defendant, cross-examined the plaintiff on the lack of any
 43

reference in the ruling to a specific law, he conceded that the absence of

reference to specific law made the ruling deficient. He agreed with Mr
Jearey that the correct use of language was important for lawyers and
imperative for judges.

Referring to the offending passages, as published by the second and third

defendants, the plaintiff agreed that Mr Milner, in his capacity as minister
responsible for the police, including special constables, was entitled to be
concerned with what he had said in his ruling but that in doing so, the
minister went beyond fair comment and imputed incompetence, unfairness,
lack of impartiality and unfitness to be on the High Court Bench. He would
have been contented with an apology from Mr Milner. Efforts were made to
obtain one but to no avail. Had he succeeded in getting the apology, he
would not have instituted this action.

The plaintiff called one witness on his own behalf, Mr Valentine Kayope,
who had been a friend of his since 1958. Mr Kayope said in his evidence
that, on reading the offending articles in the Zambia Daily Mail and the
Times of Zambia of February 17th, 1975, his reaction was one of shock and
revulsion as it was wrong for anyone to question the integrity of a Judge.
Judges, he said, should not be open to criticism and that the only way of
criticising them lay in an appeal to the Supreme Court. He testified that the
wholesale condemnation of the plaintiff by a senior cabinet minister
"indicated that the judge was not qualified to be a judge. "

All the three defendants rested their respective cases on their pleadings and
called no witnesses on their own behalf. All of them pleaded the defence of
fair comment. It was submitted by learned counsel on their behalf that the
minister's comment was honest and fair.

Mr Kasonde, on behalf of the first defendant, conceded that the minister's

demand for an apology from the plaintiff as reflected in the second
defendant's publication, would appear to be outside fair comment but that, in
the light of paragraph 1593 at page 847 of Clerk and Lindsey on Torts, 12th
edition, the comment was covered and so it remained fair comment. The
paragraph referred to, which relates to "public interest" reads as follows:

"Matters of Church and State. Everything which directly effects the

welfare of Church and State is clearly a matter of general public interest.
There can be no dispute as to the right of criticism with regard to the policy
 44

of the Government, the administration of justice, the proceedings of the

legislature, the conduct of the executive in civil and military affairs, and
generally the manner in which all those who may be called public servants
discharged their duties,"

p26

Granted, as Mr Kasonde said, that the demand for an apology went beyond
fair comment, I can see nothing in the foregoing passage to ameliorate or
alter that position.

Mr. Jearey submitted that the question was not whether the minister had
been right of wrong, but whether his opinion could have been expressed by a
fair-minded and reasonable person. He went on to say that the plaintiff s
ruling had raised public doubt on the status and legality of special
constables. He submitted that, although the minister had responded in terms
which were strong, his comment was not outside fair comment.

The issue is whether the words complained of by the plaintiff constitute

libel. It is trite law that libel is the publication of a matter, usually words,
conveying a defamatory imputation as to a person's character, office or
vocation. As Lord Atkin observed in Sim v Stretch, (2) there is no wholly
satisfactory definition of a defamatory imputation. Any imputation which
may tend "to lower the plaintiff in the estimation of right-thinking members
of society generally," "to cut him off from society or "to expose him to
hatred, contempt or ridicule", is defamatory of that person. In Frederick
Kunongona Mwanza v Zambia Publishing Company Limited, (3), Cullinan,
J., held that, any imputation which may tend to injure a man's reputation in
business, in employment trade, profession, calling or office carried on or
held by him, is defamatory.

In the instant case, it is not seriously disputed that the words complained of
were prima facie defamatory of the plaintiff. Indeed, the plaintiff stated in
his evidence that, as a result of the publication aforesaid, he was deserted by
his friends, except those who were close to him, his only witness, Mr
Valentine Kayope, being among them.

The caption in the Daily Mail reads: "Minister puts Judge in Dock" and the
paper goes on to state what is already reproduced, including the calling upon
the plaintiff to apologise to the minister. I am of the opinion that the words
 45

appearing in the Daily Mail were prima facie defamatory of the plaintiff, as
they resulted in his being deserted by his close friends and tended to expose
him to hatred.

For the same reasons, I find that the article in the Times of Zambia was
prima facie defamatory of the plaintiff. The question is whether the defence
of fair comment is available to the defendants.

The defence of fair comment has been recognised since the Victorian times.
The defence is in the nature of a general right, and enables any member of
the public to comment fairly on matters of public interest. It is based on facts
and inferences which are proved to be true, See Halsbury's Laws of England,
4th Ed., Vol. 28, paragraph 131.

As to the meaning and latitude of fair coment, I would like to refer to

paragraph 728 of Galley on Libel and Slander, 8th Ed., which reads:

p27

"728. The latitude of fair comment. In the following passage from his
summing-up in Stopes v Sutherland, (4) Lord Hewart C.J., points out the
latitude of fair comment:

'What is it that fair comment means? It means this-and I prefer to put

it in words which are not my own; I refer to the famous judgment of Lord
Esher, M.R. in Merivale v Carson (5): 'Every latitude,' said Lord Esher,
'must be given to opinion and to prejudice, and then an ordinary set of men
with ordinary judgment must say [not whether they agree with it, but
whether any fair man would have made such a comment....Mere
exaggeration, or even gross exaggeration, would not make the comment
unfair. However wrong the opinion expressed may be in point of truth, or
however prejudiced the writer, it may still be within the prescribed limit.
The question which the jury must consider is this-would any fair man,
however prejudiced he may be, however exaggerated or obstinate his views,
have said that which this criticism has said?' Again, as Bray L., said in R v
Russell (6): 'When you come to a question of fair comment you ought to be
extremely liberal, and in a matter of this kind-a matter relating to the
administration of the licensing laws-you ought to be extremely liberal,
because it is a matter on which men's minds are moved, in which people
who do know entertain very, very strong language, every allowance should
 46

be made in their favour. They must believe what they say, but the question
whether they honestly believe it is a question for you to say. If they do
believe it, and they are within anything like reasonable bounds, they come
within the meaning of fair comment. If comments were made which would
appear to you to have been exaggerated, it does not follow that they are not
perfectly honest comments.' That is the kind of maxim which you may apply
in considering whether that part of this matter which is comment is fair.
Could a fair-minded man, holding a strong view, holding perhaps an
obstinate view, holding perhaps a prejudiced view-could a fair-minded man
have been capable of writing this?-which, you observe, is a totally different
question from the question, do you agree with what he has said?"

The defendants have pleaded, and it is submitted on there behalf, that the
defence of fair comment is available to them all. That the comment was
made upon a matter of public interest, namely, judicial proceedings held in
open court, cannot be doubted. On the pleadings and the evidence before
me, I am satisfied that, not only was the comment made on a matter of
public interest, but also that it was honestly made by a person whose
responsibility and concern it was to curb crime, including robberies, and
whose mind was obviously moved by the plaintiff's ruling which, on the face
of it, was inclined to raise public doubt as to the status and legality of special
constables.

p28

I now have to decide whether the comment was made fairly. I will start in
the reverse order of defendants and consider first the position of the third
defendant.

In his evidence, the plaintiff freely stated that, on the basis of his ruling
aforesaid, the special constables in that case did not exist as they had acted
ultra vires by conducting an illegal search. Surely, that, in itself, is an
immoderate statement because, the fact that a police officer, or for that
matter, any other worker, makes a mistake does not ipso facto imply that that
person is non-existent, as such. Indeed, practising lawyers and judges, like
everyone else, are bound to make mistakes, albeit sparingly, but this does
not mean that when they do, they cease to be practising lawyers, judges,
etcetera. The adage "to err is human" is as significant as it is true.
 47

Although judges, as such, should generally not be exposed to criticism

because of the nature of their work, a member of the public, acting in good
faith, may genuinely exercise a right of criticism, within proper limits and
without in any way attempting to impute improper motives or to impair the
administration of justice. Lord Atkin put the matter succinctly in Andre Paul
Terence Ambard v The A.- G. of Trinidad and Tobago,(7) at page 709, when
he said this:

"But whether the authority and position of an individual judge or the

due administration of justice is concerned, no wrong [is] committed by any
member of the public who exercises the ordinary right of criticising in good
faith in private or public, a public act done in the seek of justice. The path of
criticism is a public way: the wrong headed are permitted to err therein:
provided that members of the public abstain from imputing improper
motives to those taking part in the administration of justice, and are
genuinely exercising a right of criticism and not acting in malice or
attempting to impair the administration of justice, they are immune. Justice
is not a cloistered virtue: she must be allowed to suffer the scrutiny and
respectful, even though outspoken comments of ordinary men."

It is expected, however, that members of the public will exercise restraint in

voicing public criticism of judges or other judicial officers, as to do
otherwise may well amount to treading on dangerous ground.

It seems to me that, in the circumstances of this case, Mr Milner was

exercising his genuine right of criticism and that he did so without malice or
intention to impair the administration of justice, insofar as the third
defendant is concerned. I agree that strong words were used but do not
consider that these went beyond the defence of fair comment. This, however,
should not be understood as giving a licence to administers or other
members of the public to air their criticisms against judges or other Judicial
officers as to do so may, in a proper case, amount to contempt of court or
constitute defamation. In view of what I have said

p29

above, it follows that I would uphold the third defendant's defence of fair
comment and dismiss the action against them. In the circumstances of the
case, there will be no order as to costs.
 48

Insofar as the second and first appellants are concerned however, and, as Mr
Kasonde properly conceded, the demand for an apology went beyond the
defence of fair comment. It is totally improper that a member of the public
should take it upon himself to call upon a judge, or any other judicial officer,
acting in the course of his judicial function, to apologise to him, no matter
how wrong that judge or other judicial officer may be. I, therefore, find for
the plaintiff as against the first and second defendants.

I must now consider what quantum of damages should be awarded to the

plaintiff. In his submission, Mr Kasonde said that nominal damages only
could be given. I agree that the circumstances of this case attract no more
than nominal damages. I will award a total of K500.00n to be shared equally
by the first and second defendants.

Costs will follow the event and are to be taxed, in default of agreement.

Delivered in open Court at Lusaka this 29th day of May, 1984.

Judgment for the Plaintiff

 49

EDWARD JACK SHAMWANA v LEVY MWANAWASA (1994) S.J.

93 (H.C.)

HIGH COURT
CHIEF JUSTICE OF ZAMBIA
20TH AND 30TH MAY, 1994

Flynote

Injunction - Referring to plaintiff as 'treason ex-convict' in light of a full

presidential pardon

Headnote

The plaintiff announced his intention to contest the Mumbwa by-election

and the defendant started referring to him as 'a treason ex-convict'. The
plaintiff then applied for an interim injunction to restrain the defendant “by
himself, his agents whomsoever or servants referring to the plaintiff as a
treason ex-convict or as a convict in the light of a Presidential absolute and
unconditional pardon”.

Held:

(i) Any judge faced with an ex parte application for an injunction is

duty bound to critically examine and not gloss over such application
and to be satisfied that the situation revealed justifies an order on
an urgent basis pending an inter parte hearing shortly thereafter

For the plaintiff: Mr C. Hakasenke of Shamwana and Company.

For the defendant: In person.

_________________________________________
Ruling

CHIEF JUSTICE OF ZAMBIA: delivered the judgment of the court.

On 5th May,1994, the Plaintiff issued a Writ of Summons out of the

principal registry endorsed with a claim for:
 50

“1.Damages for malicious slander uttered at different fora since

plaintiff declared his intention to stand as a President of National Party and
as a candidate for the Mumbwa Constituency by election that the plaintiff is
an ex-convict or similar sentiments asserting that for that reason he is unfit
to govern Zambia when it fact it is a fact that Political Prisoners have been
elected leaders in their countries throughout the World, and the plaintiff
received a complete and unconditional pardon.

2. Injunction restraining the Defendant, his agents whosoever, or

servants referring to the plaintiff as treason ex-convict or as convict in the
light of a Presidential absolute and unconditional pardon.

3. Further or other relief.”

By an ex parte summons, the plaintiff applied for an interim injunction to

restrain the defendant “by himself, his agents whomsoever or servants
referring to the plaintiff as a treason ex-convict or as a convict in the light of
a Presidential absolute and unconditional pardon”. Although I had during
the hearing refused an application made by the defendant under Order 32/13
of the Rules of the Supreme Court (1993 White Book) to adjourn the whole
of the hearing into open court, I agreed to deliver this ruling in open court of
the issues addressed which I consider to be of general importance.

when the application was lodged, I did not consider it appropriate to proceed
ex parte and directed that the application be heard inter parte. At the last but
one adjournment, the plaintiff remarked to the effect that in the normal
course, he should have been given an ex parte order.

p95

Let me take this opportunity to dispel the notion, which unfortunately seems
to be widely held, that ex parte injunctions are available more or less as a
matter of course; almost automatically for the asking. They are not and in
this regard I wish to draw attention to Order 29 R.S.C.1993 White Book,
especially the discussion at Order 29/1/8. I also wish to borrow from the
language of paragraph 1051, Halsbury’s Laws of England, 4th Edition,
Volume 24, that an injunction will not usually be granted without notice, but
if the court is satisfied that the delay caused by proceeding in the ordinary
way might entail irreparable or serious mischief, it may make a temporary
order ex parte upon such terms as it thinks just. The granting of ex parte
 51

injunctions is the exercise of a very extraordinary jurisdiction, and therefore

the time at which the plaintiff first had notice of the act complained of will
be looked at very carefully in order to prevent an improper order being made
against a party in his absence, and if the applicant has acquiesced for some
time it will not be granted.

The passage from Halsbury’s supports the proposition that it is an

elementary requirement of fairness and justice that as a general rule both
sides be afforded the opportunity to be heard and where it is sought to depart
from this norm, as in an ex parte application for an injunction, strong
grounds must be shown to justify the application being made ex parte. The
application must be made promptly as soon as the plaintiff becomes aware
of his or her cause of action and there is need either to preserve the status
quo or to prevent irreparable or serious mischief. Ex parte injunctions, as
the learned authors of the White Book and Halsbury’s Laws of England
observe, are for cases of real urgency where there has been a true
impossibility of giving notice to the opponent. what is more, the material
that is placed before the court on an ex parte application for an injunction
should disclose, at first glance or prima facie, a strong case on the merits for
the possible grant of an interlocutory injunction once an inter partes hearing
takes place. I make no apology for holding the very firm view that any
judge faced with an ex parte application for an injunction is duty bound to
critically examine and not gloss over such application and to be satisfied that
the situation revealed justifies an order on an urgent basis pending an inter
parte hearing shortly thereafter on a date to be specified preferably in the ex
parte order, in terms of the practice direction recently issued by me on the
subject. I was not satisfied on the material placed before me that this was a
proper case for an ex parte order on an emergency basis.

I now turn to the application which has since been heard inter partes. In
coming to my decision in this ruling, I have heeded the caution given in such
cases as Turnby Properties v Lusaka West Development Company Ltd
(1984) ZR 85 that I should in no way pre-empt the decision of the issues
which are to be decided on the merits and the evidence at the trial of the
action. I have also considered the authorities cited under paragraphs 167 and
168 of Vol. 28, Halsbury’s Laws of England, 4th edition, in support of the
statement that:

“because of the court’s reluctance to fetter free speech and because of

the questions that arise during the proceedings, such as whether the meaning
 52

is defamatory, whether justification or fair comment are applicable and as to

malice, are generally for the jury - (in our case the

p96

trial judge) - interlocutory injunctions are granted less readily in

defamation precedents than in other matters and according to different
principles.”

These passages have been cited by the defendant who, like the plaintiff, is a
senior lawyer in this country. I have perused the authorities starting with
Bonnard v Perryman (1891) 2 Ch. 269 and Lord Denning’s remarks in
Hubbard v Piti (1975) 3 A11 ER1. Since our case concerns an application to
prevent by repetition a wrong that is apprehended, I consider it appropriate
to quote a passage from the judgement of Lord Coleridge, C.J., in the
Bonnard case at P. 284 where, after affirming the court’s power to grant
interlocutory injunctions as a matter of jurisdiction, he went on to say:

“but it is obvious that the subject matter of an action for defamation is so

special as to require exceptional caution in exercising the jurisdiction to
interfere by injunction before the trial of an action to prevent an anticipated
wrong. The right of free speech is one which it is for the public interest that
individuals should possess, and, indeed, that they should exercise without
impediment, so long as no wrongful act is done; and, unless an alleged libel
is untrue, there is no wrong committee; but, on the contrary, often a very
wholesome act is performed in the publications and repetition of an alleged
libel. Until it is clear that an alleged libel is untrue, it is not clear that any
right at all has been infringed; and the importance of leaving free speech
unfettered is a strong reason in cases of libel for dealing most cautiously and
warily with the granting of interim injunctions”.

In the Hubbard case, Lord Denning at p.5 cited with approval the sentiments
of Lord Coleridge, C.J. about free speech and the fact that the courts will not
restrain a defendant who proposes to justify the words complained of. Para.
168 of Halbury’s Vol. 28 summarises the position as follows:

“it is well settled that no injunction will be granted if the defendant states his
intention of pleading a recognised defence, unless the plaintiff can satisfy
the court that the defence will fail. This principle applies not only to the
 53

defence of justification but also to the defences of privilege, fair comment,

consent, and probably any other defence.”

Cases are cited in support of each of the several aspects of the statements I
have quoted and which, for the sake of brevity, I will not repeat here.

I have before me affidavits on both sides and I have carefully addressed

myself to the submissions. It was not in dispute that, subject to the special
consideration which apply to defamation cases, the usual considerations
which apply to all other application for interlocutory injunctions generally
apply also to a defamation case. Thus, for example, the plaintiff’s right to
relief must clearly be shown: see Shell And BP (Z) Ltd v Conidaris and
Others (1975) Z.R. 174 and American Cyanamid (C) v Ethicon Ltd (1975)
A.C. 396 although the latter case’s applicability to defamation cases in a
wholesale manner has been doubted: see note 4 to par. 167 of Halbury’s,
vol. 28. Mr

p97

Hakasenke sought to establish the plaintiff’s clear right to relief by citing

para. 952 of vol. 8 of Halsbury’s Laws of England, 4th Edition, as to the
effect of a pardon which is to clear the affected person from all infamy, and
from all consequences of the offence for which it is granted, and from all
statutory and other disqualifications following upon conviction.

“it makes him, as it were, a new man, so as to enable him to maintain an

action against any person afterwards defaming him in respect or the offence
for which he was convicted”.

The further authority cited was Leyman v Latimer (1878) 3 eXD 352. It
should be noted, for the record, that the defendant did not dispute what the
legal effect of a pardon is. But he submitted that, as matter of ordinary
language, the reference complained of was factually correct. I have read the
report on the Leyman case and the judgements rendered by Bramwell, L.J.,
Brett,L.J., and cotton,L.J.

The effect of a pardon and that of a spent conviction were alluded to and the
offending words in that case were references to the plaintiff as a “convicted
felon” and “felon editor”. Their Lordships in that case were discussing the
pleadings in a case which had not been fully tried on the merits and
 54

evidence. What emerges clearly from the judgements is that the court drew
a distinction between the allegation that the plaintiff had at some previous
time been convicted of felony which words were literally true, and the
reference to “felon editor” which described the plaintiff as though still being
a “felon”. Needless to say, the defence of jurisdiction was not supported on
the latter allegation since quite clearly it is desirable that a time should come
when a person who has been convicted of felony should cease to be called a
felon and it is cruel, as Bramwell,L.J., put it, “to rake up what is past.” As I
have already stated, I do not have to anticipate what the trial court will find.
suffice it to say that there appears to be an arguable case either way and my
decision will therefore not rest on the presence or absence of a clear right to
relief but on the other principles which I have endeavoured to adumbrate in
relation to defamation cases.

In this application which is in the nature of a Quia timet application to

prevent a future wrong by repetition which the plaintiff apprehends, it is
vitally important for the plaintiff to show some evidence of the defendant’s
intention to repeat the words that would legally be objectionable and
actionable. This is particularly important if the court is to avoid making a
global order which should simply be oppressive to the defendant who has
shown to my satisfaction, by his affidavit, that he intends to plead some
recognised defences. The case of Harakas and others v Baltic Merchantile
and Shipping Exchange and another (1982) 2 A11 E.R. 701 which the
defendant cited is very much in point.

At the end of the day, having weighed the mischief sought to be restrained
and the principles and authorities; and having considered the affidavits to the
extent that they were not objectionable for being argumentative and non-
factual; and also having taken all the submissions into account, I am not
satisfied that this is an appropriate case in which I should exercise the
discretionary jurisdiction of the court to restrain the defendant by
interlocutory injunction pending trial. I have also not lost sight of the
principle that adequacy of monetary compensation

p98

is nearly always a ground for not granting such interlocutory relief. Of

course, I do not propose to dwell on the arguments related to the plaintiff’s
right to seek election to political office nor the defendant’s right to campaign
freely for or against any person. Such arguments were, in my considered
 55

opinion, otiose and surplus to the requirements of this application since the
issue was simply whether it was necessary and appropriate to grant an
interlocutory injunction to prevent irreparable or serious mischief. For the
reasons I have given, I refuse this application.

Because the application raised important issues of general interest and

because it also provided me with the opportunity to pronounce upon the
question of ex parte applications of this nature which appeal to be routinely
given even to dilatory plaintiffs and even in doubtful situations, I consider
that the costs should be in the cause and I so order.
 56

SATA v POST NEWSPAPERS Ltd and ANOTHER

HIGH COURT
NGULUBE, C.J.
13TH FEBRUARY, 1995

Flynote

(1) Constitutional law – Fundamental rights – Freedom of the press –

Right to reputation – Defamation – Fair comment – Public interest –
Impersonal attack on governmental operations – Whether defamation
of official responsible – Whether injury to official reputation – Extent
of press freedom to express criticism – Whether current law of
defamation requiring modification – Defamation at, s 7 –
Constitutional of the Republic of Zambia 191, art 20.

(2) Tort – Defamation – ‘Rolled-up plea’ – Fair comment – Allegations

patently injurious to personal, private and official, political character
– Whether allegations based on inferences of fact – Whether
inferences legitimately drawn from other facts stated orindicated in
publication complained of – Whether protected as fair comment on
matters of public interest.

(3) Tort – Defamation – Fair comment – Factual allegations proved in

part or notorious in public domain – Some allegations unproved –
Whether defence of fair comment available-Defamation Act, s 7.

(4) Remedies – Defamation – Injunction – Whether exemplary or punitive

damages appropriate – Primary object of award – Whether perpetual
injunction appropriate -Freedom of the press.

Headnote

The plaintiff, who was at all material times a politician and public official
holding a ministerial appointment, brought three actions for libel against
the defendant, contending that they had defamed him in their newspaper
publications. In May 1992 the defendants published an editorial article in
their newspaper stating that the plaintiff was a political survivor, and that in
the second Republic ‘he survived vetting on several occasions’. The article
stated that in 1990 the plaintiff’s ‘political prostitution’ prompted the
 57

former president’s decision to fire him. The article listed the plaintiff’s
‘thoughtless’ actions, including the razing of houses, his alleged order to
fire striking workers, the alleged awarding of contracts to associate, riotous
behaviour where some mourners from the ruling party were stoned at a
funeral and outrageous or intolerant behaviour on television. The article
referred to the Anti-Corruption Commission’s investigations against the
plaintiff and it concluded ‘there is nothing “honourable” about this clearly
dishonourable man’. The plaintiff issued proceedings in the first action
against the defendant for the remarks published which he claimed were
defamatory. The plaintiff’s allegedly thoughtless actions had been reported
in various other newspapers with a national circulation and on the
electronic media. The plaintiff in a television programme took up the
official defence of the razing of houses and criticised the media in general
and the first defendants by name for their shortcomings when reporting on
issues.

In the second action, which was consolidated with the first, the plaintiff
complained about the main story on the front page of the defendant’s
newspaper in July 1992, which reported that the plaintiff was beaten up by
another minister in the National Assembly motel bar room when the plaintiff
provoked others by his belligerence and abusive language. The plaintiff
pleaded in his statement of claim that it was defamatory

(i) to impute that he was physically incapable of defending himself and

(ii) to assert that he could not even lose his good reputation, since he had
none and that he was ‘not only unruly, but…also greedy’ as alleged in the
accompanying editorial.

In the third action the plaintiff complained of two articles together with a
cartoon which appeared in January 1993 in the defendants’ newspaper.
The first article concerned the plaintiff’s diversion for his own benefit of a
government grant of K1.6bn to local authorities which was meant for, inter
alia, salary increases and arrears. A summary of a report on the matter
was subsequently distributed at a State House press conference. In the
second article the first defendant urged the president to remove the plaintiff
from his ministerial office and, relying on previous publications, stated that
the plaintiff was petty and unscrupulous. The cartoon depicted a large
snake with a human head pinned down by a prong on which was inscribed
‘1.6 billion’. The plaintiff’s nickname was ‘King Cobra’. The statement of
 58

claim included a prayer for a perpetual injunction to restrain the defendants

from repeating the alleged libels. The defendants did not dispute having
published in their newspaper the articles and cartoon relating to the
plaintiff which the plaintiff alleged were libellous. They asserted in a
rolled-up plea that those allegations consisting of comments were fair
comments on matters of public interest. Article 20(2) of the Constitution of
the Republic of Zambia 1991 provided that subject to the Constitution’s
provisions no law should make any provision that derogated from the
freedom of the press. The defendants submitted that s7 of the Defamation
Act permitted a reasonable margin of misstatement of facts on the defence of
fair comment. The defendant contended that the common law principles of
the law of defamation in their application to plaintiffs who were public
officials as to their right of action should be modified in relation to the
burden and standard of proof and the latitude that the press should be
permitted in order to subject public officials to criticism and scrutiny.

HELD: Judgement for the plaintiff in part.

(1) In order to give effect to art 20 of the Constitution, which

guaranteed the freedom of the press, the law of defamation as
currently applied was to be interpreted as precluding impersonal
attacks on governmental operations from being treated as libels of
an official responsible for those operations. It was of the highest
public importance that a democratically elected governmental body
should be open to uninhibited public criticism, and since the threat
of civil actions for defamation induced the chilling effect or
tendency to inhibit free discussion and placed an undesirable fetter
on the freedom to express such criticism, it would be contrary to the
public interest for governmental institutions to have any right at
common law to maintain an action for damages for defamation.
Since those in public positions were taken to have offered
themselves to public attack, impersonal criticism of public conduct
leading to injury to official reputation should not attract liability
provided that criticism contained no actual malice and even if,
pursuant to s 7 of the Defamation Act, the truth of all facts alleged
was not established, the imputation complained of was competent on
the remainder of the facts which were proved. Where an allegation
of libel could properly be regarded as comment on the conduct of a
public official in the performance of his official duties or on
conduct reflecting upon his fitness and suitability to hold office,
 59

freedom of speech and the press could best be served by the courts’
insisting upon greater tolerance than in the case of a private attack
before an obvious comment based on substantially true facts could
be regarded as unfair. A balance had to be struck between freedom
of the press and the right to reputation guaranteed by art 20, which
was not possible by shifting the burden or standard of proof (see pp
73, post). New York Times Co v Sullivan (1964) 376 US 254 and
Theophanous v Herald and Weekly Times Ltd [1994] 3 LRC 369
adopted.

(2)

(3) On established principles an allegation could be comment if it was

an inference of fact which could legitimately be drawn from other
facts stated or indicated in the publication complained of but where
a bold allegation could not be distilled from other facts started or
indicated, it could not even be called a comment. It followed that to
call a politician and a minister a political prostitute was clearly
defamatory. The plaintiff in the first action could not be called a
political prostitute for joining a party of his own choice after the
reintroduction of a new political dispensation allowing for the
formation of other parties. The allegation was patently injurious to
the plaintiff in his private and personal character and in his
political and official character. In the second action the evidence
given to support the allegation of greed did not reveal any personal
benefit on the part of the plaintiff and constituted a personal attack
upon him. Greed was a personal characteristic and could not have
been a criticism of the plaintiff in any official capacity. Moreover, a
fair-minded person could not reasonably infer greed from such
facts and the opinion cold not represent the honest opinion of the
writer. In the third action the allegations of corruption in the
editorial wee not justifiable or warranted by the facts available and
were indefensible as fair comment since there was little if any
comment. It followed that the editorial amounted to a flagrant
attack on the very core of the personal character and the private and
public reputation of the plaintiff. Judgment would accordingly be
entered for the plaintiff with regard to those allegations (see pp 76,
77, 78-79, 81-82, 83, 84, post). Kemsley v Foot [1952] 1 All ER 501
considered.
 60

(4) Fair comment could not avail the defendant where the allegation
made could not fairly and reasonably be inferred from the facts.
Although on a consideration of the evidence the plaintiff in the first
action was vetted on one occasion only, the error in the number of
occasions could not be regarded as defamatory. Since the public
and general readership of newspapers in the country had been
conditioned by previous publications to attach official blame to the
plaintiff with regard to his allegedly thoughtless actions, there was a
sufficient substratum of fact on which to base the comments made
on the razing of houses. In the second action in the context of the
article as a whole it was clear that the allegation in the editorial,
that the plaintiff had no reputation, was made as an inference of
fact. Moreover, since bar-room brawls were dishonourable and
those who participated were rightly said to be unruly, it followed
that it was not defamatory to report that some one had been beaten,
especially by a much bigger opponent. In the third action on the
evidence the information concerning the diversion of the large sum
of money was substantially the truth. The cartoon was a satirical
comment to the effect that the plaintiff had been caught in some
wrongdoing regarding the money referred to and could not be
construed in isolation. The nature of the wrongdoing was fully
discussed in the articles and it would be strange for any reasonable
reader to ignore the articles and to read meanings into the cartoon
independently of those articles. The inferences and comments on
the true representation of the facts in the third action were neither
defamatory nor actionable and it followed that the defence of fair
comment applied to the otherwise defamatory caricature. Even
though there was insufficient evidence to establish the truth of all of
the allegations made by the defendants, the imputations, except
those relating to the personal character assassination, the political
prostitution and greed of the plaintiff, were competent on the facts
which were proved or notorious in the public domain and it
followed that, in relation to those imputations, the defence of fair
comment was available pursuant to s 7 of the Defamation Act (see
pp 78, 79-80, 81, 82, 83-84, post).

(5) Where there was little actual loss suffered by a plaintiff exemplary
or punitive damages were not appropriate, since the primary object
of an award for defamation was to offer vindication and solatium
rather than monetary compensation. On a consideration of all the
 61

circumstances, K500,000 would be awarded by way of solatium to

the plaintiff in respect of the consolidated actions and an award of
the same amount in respect of the third action. As the plaintiff was
a political figure, a perpetual injunction would inhibit free debate
on current and future, political matters and accordingly would not
be granted to restrain the defendants from publishing their opinions
(see pp 84-85, post). (Editor’s note: Article 20 of the Constitution of
the Republic of Zambia 1991 is set out at p 66, post.]

Cases referred to in judgment

(1) Afro-American Publishing co v Jaffe (1966) 125 US App Dc 70, 366

F 2d 649, US S.C.
(2) Barr v Matteo (1959) 360 US 564, 3 L Ed 2d 1434, US SC
(3) Buckley v New York Post Corp (1967) 372 F 2d 175, 2d Cir
(3) Cobbett-Tribe v Zambia Publishing Co Ltd [1973] ZR 9
(4) Curtis Publishing Co v Butts; Associated Press v Walker (1967) 388
US 130, (1967) 18 L Ed 2d 1094, US SC
(5) Chicago (City) v Tribune Co (1923) 307 111 595, 139 NE 86, US SC
(6) De jonge v Oregon (1937) 299 US 353, 81 L Ed 278, US SC
(7) Derbyshire CC v Times Newspapers Ltd [1993] 2 LRC 617, [1993] 1
All ER 1011, [1993] AC 534, [1993] 2 WLR 449, UK HL
(8) Hunt v Star Newspaper Co Ltd [1908]2 KB 309, [1908-10] All ER
Rep 513, UK C.A.
(9) Kapwepwe v Zambia Publishing Co Ltd [1978] ZR 15 (S.C.)
(10) Kemsley v Foot [1952] 1 All ER 501, [1952] A.C. 345, UK HL
(11) New York Times Co v Sullivan (1964) 376 US 254, 11 L Ed 2d 686,
US S.C.
(12) Theophanous v Herald and Weekly Times Ltd [1994] 3 LRC 369,
(1994) 124 ALR 1, Aus H.C.
(13) Time, Inc, v Hill (1967) 385 US 374, 17 L Ed 2d 456, US S.C.
(14) Whitney v California(1927) 274 US 357, 71 L Ed 1095, US S.C.

Legislation referred to in judgment

Zambia

1. Constitution of the Republic of Zambia 1991, art 20

2. Corrupt Practices Act
3. Defamation Act (Cap 70), ss 6, 7, 9, 10
 62

United Kingdom

Fatal Accidents Act 1846; Libel Act 1843 (Lord Campbell’s Acts)

United States
Constitution (1787), First and Fourteenth Amendments

Other sources referred to in judgment

African Charter on Human and Peoples’ Rights, art 9

Convention for the Protection of Human Rights and Fundamental Freedoms
(Rome, 4 November 1950; TS 71 (1953); Cmd 8969), art 10
Douglas The Right of the People (1958) p 41
Gatley on Libel and Slander (8th edn, 1981) paras 695, 696, 884
International Covenant on Civil and Political Rights (New York, 16
December 1966; TS 6 (1977); Cmnd 6702), art 19

Actions
Michael Chilufya Sata, the plaintiff, brought three actions for libel against
Post Newspapers Ltd and Printpak Zambia Ltd, the defendants, which he
contended published defamatory articles in their newspapers, The Post and
formerly The Weekly Post, in the editions (i) dated 22 to 28 May 1992, (ii)
dated 8 to 14 January 1993 and (iii) dated 31 July to 6 August 1992. The
first two actions were consolidated and upon application the court ordered
that the third action be tried with the consolidated actions. The defendants
pleaded fair comment to all the allegations. The facts are set out in the
judgment of Ngulube,C.J.

For the plaintiff: Mundia F. Sikatana

For the first defendant: S. Sikota and S Nkonde
For the second defendant: E. Lungu

____________________________________
Judgment

NGULUBE, C.J.: delivered the judgment of the Court

There are three actions for libel in this case to which the defendants have
pleaded fair comment. Their rolled-up plea assets that those allegations
 63

consisting of fact are true and those consisting of comments are fair
comments on matter of public interest. In respect of some of the matters
complained of there is a denial that they could bear the defamatory
imputations assigned to them by the plaintiff in his pleadings. The plaintiff
was at all material times a politician and public official holding a ministerial
appointment and it was not in dispute that the defendants published in their
newspaper ‘The Post’ (and formerly ‘The Weekly Post’) the various articles
and a cartoon complained of. The two actions commenced in 1992 were
consolidated, while I had in the early stages of the trial allowed an
application that the 1993 action be tried together with the consolidated
action.

Before analysing the issues raised in the pleadings and the evidence it is
necessary to give precedence to a proposition put forward by Mr Sikota and
Mr Lungu which was to the following effect as I summarise it. Because art
20 of the Constitution of the Republic of Zambia 1991 specifically
recognises, among others, the principle of the freedom of the press, it is now
time to modify the common law principles of the law of defamation in their
application to plaintiffs who are public officials as to their right of action,
the burden and standard of proof, and the latitude the press should be
permitted to subject public officials to criticism and scrutiny. It was argued
that because of the similarity between the provision in our Constitution and
that of the USA, we should choose to follow the line taken by the American
courts rather than the one followed by the courts in England. In this regard,
it was submitted that I should apply the landmark case of New York Times
Co v Sullivan (1964) 376 US 254, 11 L Ed 2d 686 in which the Supreme
Court of the United States laid down some principles grounded in the First
and Fourteenth Amendments to fetter libel actions by public officials to the
benefit of free speech and press freedom. Our art 20 reads:

‘(1)Except with his own consent, no person shall be hindered in the

enjoyment of his freedom of expression, that is to say, freedom to hold
opinions without interference, freedom to impart and communicate ideas and
information without interference, whether the communication be to the
public generally or to any person or class of persons, and freedom form
interference with his correspondence.

(2) Subject to the provisions of this Constitution no law shall make any
provision that derogates from freedom of the press.
 64

(3) Nothing contained in or done under the authority of any law shall be
held to be inconsistent with or in contravention of this Article to the extent
that it is shown that the law in question make provision-(a) that is reasonably
required in the interest of defence, public safety, public order, public
morality or public health; or (b) that it is reasonably required for the purpose
of protecting the reputations rights and freedoms of other persons or the
private lives of persons concerned in legal proceedings, preventing the
disclosure of information received in confidence, maintaining the authority
and independence of the courts regulating educational institutions in the
interest of persons receiving instruction therein, or the registration of, or
regulating for technical administration or the technical operations of,
newspapers and other publications, telephony, telegraphy, posts, wireless
broadcasting or television, or (c) that imposes restrictions upon public
officers; and except so far as that provision or, the thing done under the
authority thereof as the case may be, is shown not to be reasonably
justifiable in a democratic society.’

The First Amendment to the United States Constitution reads, omitting the
irrelevant: ‘Congress shall make no law… abridging the freedom of speech,
or of the press.’ The Fourteenth Amendment reads: ‘No state shall make or
enforce any law which shall abridge the privileges or immunities of citizens
of the United States.’ It should be noted that there are international human
rights instruments with similar provisions. For instance, an English court
would take heed of art 10 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (Rome, 4 November 1950; TS 71 (1953);
Cmd 8969) (the European Convention) which reads:

‘1. Everyone has the right to freedom of expression. This right

shall include freedom to hold opinions and to receive and impart information
and ideas without interference by public authority and regardless of
frontiers. This Article shall not prevent states from requiring the licensing of
broadcasting, television or cinema enterprises.

2.The exercise of these freedoms, since it carries with it duties and

responsibilities, may be subject to such formalities, conditions, restrictions
or penalties as are prescribed by law and are necessary in a democratic
society in the interests of national security, territorial integrity or public
safety, for the prevention of disorder or crime, for the protection of the
reputation or rights of others, for preventing the disclosure of information
 65

received in confidence, or for maintaining the authority and impartiality of

the judiciary.’

Then there is the United Nations International Covenant on Civil and

Political Rights, art 19 of which is couched in even more sweeping terms:

‘(1) Everyone shall have the right to hold opinions without

interference.
(2) Everyone shall have the right to freedom of expression; this right
shall include freedom to seek, receive and impart information and ideas of
all kinds, regardless of frontiers, either orally, in writing or in print, or in the
form of art, or through any other media of his choice.

(3) The exercise of the rights provided for in paragraph 2 of this article
carries with. It special duties and responsibilities. It may therefore be
subject to certain restrictions, but these shall only be such as are provided by
law and are necessary; (a) for respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public),
or of public health or morals.’

In the case of Zambia and other African countries, there are also the more
modest provisions of art 9 of the African Charter on Human and Peoples’
Rights which declare the right of every individual to receive information and
to express and disseminate his opinions ‘within the law’.

I make reference to the international instruments because I am aware of a

growing movement towards acceptance of the domestic application of
international human rights norms not only to assist to resolve any doubtful
issues in the interpretation of domestic law in domestic litigation but also
because the opinions of other senior courts in the various jurisdictions
dealing with a similar problem tend to have a persuasive value. At the very
least, consideration of such decisions may help us to formulate our own
preferred direction which, given the context of our own situation and the
state of our own laws, may be different to a lesser or greater extent. What is
certain is that it does not follow that because there are these similar
provisions in international instruments or domestic laws, the courts in the
various jurisdictions can have or have had a uniform approach. For one
thing, as the examples I have quoted show, the right to free expression and
free speech is qualified by exceptions, in some cases more heavily than in
others. For another, we are at different stages of development and
 66

democratisation and the courts in each country must surely have regard to
the social values applicable in their own milieu. The question before me in
these actions is whether the law of defamation as currently applied derogates
from, among others, the freedom of the press guaranteed by art 20 and if so
what modifications would reasonably be required to be imported or imposed
in order to give effect to the intention of the Constitution.

Counsel for the defendants argued that Sullivan provides a suitable

precedent of the attitude and direction the courts in Zambia ought to take.
The First Amendment is not even as elaborate as our art 20 but the Supreme
Court of the United States was able to imply some requirements in order to
promote the freedom guaranteed by the Constitution. They said they had no
difficulty in distinguishing among defamation plaintiffs and categorised
them as plaintiffs who are public officials on the one hand and those who are
private individuals on the other. They held that the constitutional guarantee
of freedom of speech and press prohibits a public official from recovering
damages for a defamatory falsehood relating to his official conduct unless he
(the plaintiff) proves that the statement was made with ‘actual malice’, that
is with knowledge that it was false or with reckless disregard of whether it
was false or not; finding that such a qualified privilege of honest mistake of
fact is required by the First and Fourteenth Amendments in order to give
citizens and newspapers a ‘conditional privilege’ immunising non-malicious
defamatory misstatements of fact regarding the official conduct of a
government officer.

Since the defendants rely quite heavily on Sullivan and other American
cases, I intend to consider some of these cases in greater detail in a moment.
However, I think it is important for me at this stage to dispel any suggestion
that only the American courts or the common law as applied in that country
have recognised the importance of the freedom of free speech and the press
in a democracy nor the banaful effects of libel litigation on the free press.
The chilling effect or the tendency to inhibit free discussion induced by
litigation or threats of litigation is universally recognised and no doubt taken
into account particularly when the matter concerns public institutions and
public officials as well as the public interest. There is in fact a lot more in
common among the common law jurisdictions than there are differences.
Thus the underlying rationale for protection free speech and its importance
to good governance and democracy, the question of the public conduct of
public officials, the liability of public persons to greater scrutiny,
considerations of what matters can properly be regarded as matters of public
 67

interest, protection for private reputation and character, all these and many
more generally find common expression and treatment. These seem to be
differences when it comes to local variables in the limits afforded by the
recognised defences, any local statute law on the subject and the factors
entitling or disentitling the plaintiff to a remedy. Certainly Sullivan
introduced modifications which have not found universal acceptance when it
restricted a public official’s right to redress in libel action by finding a
conditional privilege, by changing the burden and standard of proof, by
narrowing the common law ambits of express or actual malice available to a
public official and by positively condoning defamatory falsehoods unless the
plaintiff proves actual malice a narrowly defined by that august court. Even
the defence of fair comment which is based on the availability of a sufficient
substratum of true facts and which is generally defeasible if grounded on
misstatements was heavily adjusted against the public official in favour of
free speech and press. Thus we find that the court held that the Fourteenth
Amendment required recognition of a conditional privilege for honest
misstatements of fact so that fair comment should be available for honest
expression of opinion based on the privileged but false facts, to the same
extent as comment on true facts, unless the plaintiff public official proves
actual malice and this to the higher standard of proof of ‘convicting clarity’
found to be required by the Constitution.

For completeness, I should refer to some aspects of Sullivan with which

most courts would have no difficulty. The libel action was brought in a state
court (circa 1960) by a public official against a newspaper and the authors
for publication of an advertisement describing the maltreatment in an
Alabama city of negro student protesting against segregation. There were
references in the article to harassment of Dr Martin Luther King who was
allegedly frequently arrested for trivial alleged infractions and whose
residence had been physically attacked, the use of excessive force by the
police to break up peaceful demonstrations by negro students and their
sympathisers, and a reference to Constitution-violators in the south trying
very hard to kill the movement for negro rights, including desegregation and
the right to vote. The criticisms were aimed at officialdom and the police
generally; the plaintiff was not personally identified nor targeted and the
United States Supreme Court, quite properly in my view, criticised the
attempt by the plaintiff to transmute the impersonal criticism of government
into personal criticism of himself as the official heading the department in
charge of the police. As headnote 38 of the report puts it:
 68

''the constitutional guarantee of freedom of speech and press precludes

an otherwise impersonal attack on governmental operations from being
treated as a libel of an official responsible for those operations.''

I am myself nor surprised that the United States Supreme Court overturned
the lower court’s verdict, as it were, even on the merits. There was clearly
no reference to the plaintiff so that the newspaper did not write of or
concerning him. Even the few factual errors which were there (that Dr
Martin Luther King had been arrested seven times instead of four, and that
the police had ‘ringed’ a university campus when in fact they had been
deployed there but without literally surrounding the campus) were properly
accepted as inevitable in any free debate; they did not go to the root of the
genuine grievance, the subject of the publication, which was undoubtedly a
matter of much current public interest. Section 7 of our Defamation Act –
which I will be coming to late – would have applied to save the plea of fair
comment if this case had been tried in our courts and there had been a proper
reference to the plaintiff personally.Where there has been impersonal
criticism, I would myself go along with the reasoning in Sullivan. It is this
same type of reasoning which led the House of Lords in Derbyshire CC v
Times Newspapers Ltd [1993] 2 LRC 617, [1993] AC 534 to hold that a
local authority cannot bring an action for libel. Their Lordships held that,
since it was of the highest public importance that a democratically elected
governmental body should be open to uninhibited public criticism, and since
the threat of civil actions for defamation would place an undesirable fetter
on the freedom to express such criticism, it would be contrary to the public
interest for institutions of central or local government to have any right at
common law to maintain an action for damages for defamation; and that,
accordingly, the plaintiff council was not entitled to bring an action for libel
against the defendants. I entirely agree with this conclusion.

The question arises: should the rationale and principles relating to

impersonal criticism be extended to public officials in the wholesale manner
suggested by the submission in this case? In the opinion of the court in
Sullivan, which was delivered by Brennan J, stress was laid on the fact that
the alleged libellous publication caused injury to official reputation. The
court weighed the public interest of the public’s receiving information
against possible injury to the official reputation of public figures and took
the view that the chances of injury to the private or personal characters were
usually very small when the discussion was on official conduct. The judges
were ever so careful to draw the distinction between injury to official
 69

reputation arising from official conduct and injury to the personal character
of an official. The protection of Constitution was not extended to injury to
private character or the private conduct of a pubic official. I would like to
quote perhaps usually extensively from the separate opinion of Goldberg J in
Sullivan (1964) 376 US 254 at 301-303, 11 L Ed 2d 686 at 720-722:

''Our national experience teaches that reparations breed hate and 'that
hate menaces stable government.' Whitney v. California, 274 US 357, 375,
71 L Ed 1095, 1106 (Brandies, J., concurring). We should be ever mindful
of the wise counsel of Chief Justice Huges: '[I]mperative is the need to
preserve inviolate the constitutional rights of free speech, free press and free
assembly in order to maintain the opportunity for free political discussion, to
the end that government may be responsive to the will of the people and that
changes, if desired, may be obtained by peaceful means. Therein lies the
security of the Republic, the very foundation of constitutional government.'
De Jong v. Oregon, 299 Us 353, 365, 81 L Ed 278, 284. This is not to say
that the Constitution protects defamatory statements directed against the
private conduct of a public official or private citizen. Freedom of press and
of speech insures that government will respond to the will of the people and
that changes may be obtained by peaceful means. Purely private defamation
has little to do with the political ends of a self-governing society. The
imposition of liability for private defamation does not abridge the freedom
of public speech or any other freedom protected by the First Amendment.
This, of course, cannot be said 'where public officials are concerned or
where public matters are involved …[O]ne main function of the First
Amendment is to ensure ample opportunity for the people to determine and
resolve public issues. Where public matters are involved, the doubts should
be resolved in favor of freedom of expression rather than against it.'
Douglas, The Right of the People (1958), p 41. In many jurisdictions,
legislators, judges and executive officers are clothed with absolute immunity
in the discharge of their public duties. See e.g., Barr v. Matteo 360 US 564,
3 L Ed 2d 1434, City of Chicago v. Tribune Co. 307 I11., 595 at 610, 139
N.E. at 91. Judge Learned Hand ably summarized the polices underlying the
rule: It does indeed go without saying that an official, who is in fact guilty of
using his powers to vent his spleen upon others, or for any other personal
motive not connected with the public good, should not escape liability for
the injuries he may so cause; and, if it were possible in practice to confine
such complaints to the guilty, it would be monstrous to deny recovery. The
justification for doing so is that it is impossible to know whether the claim is
well founded until the case has been tried, and that to submit all officials, the
 70

innocent as well as the guilty, to the burden of a trial and to the inevitable
danger of its outcome, would dampen the ardor of all but the most resolute,
or the most irresponsible, in the unflinching discharge of their duties. Again
and again the public interest calls for action which may turn out to be
founded on a mistake, in the face of which an official may later find himself
hard put to it to satisfy a jury of his good faith. There must indeed be means
of punishing public officers who have been truant to their duties; but that is
quite another matter from exposing such as have been honesty mistaken to
suit by anyone who has suffered from their errors. As is so often the case,
the answer must be found in a balance between the evils inevitable in either
alternative. In this instance it has been thought in the end better to leave
unredressed the wrongs done by dishonest officers that to subject those who
try to do their duty to the constant dread of retaliation '.''

The foregoing is instructive. Another American case which was cited and
which I have considered is Curtis Publishing Co v Butts; Associated Press v
Walker (1967) 388 US 130, 18 L Ed 2d 1094, where the United States
Supreme Court extended the Sullivan principle to public figures who are not
public officials. The court was very careful not to give the impression that
the press were to be given a blank cheque to embark upon a course of
destruction of the reputations of public officials or public figures. As Harlan
J pointed out (388 US 130 at 146-147, 18 L Ed 2d 1094 at 1106):

''We are told that '[t]he rule that permits satisfaction of the deep-seated
need for vindication of honor is not a mere historic relic, but promotes the
law’s civilizing function of providing an acceptable substitute for violence in
the settlement of disputes,' Afro-American Publishing co. v. Jaffe 125 U.S.
App. D.C. 70, 81, 366 F. 2d 649, 660, and that: 'Newspapers, magazines,
and broadcasting companies are businesses conducted for profit and often
make very large ones. Like other enterprises that inflict damage in the
course of performing a service highly useful to the public… they must pay
the freight; and injured persons should not be relegated [to remedies which]
make collection of their claims difficult or impossible unless strong policy
considerations demand.' Buckley v. New York Post Corp. 373 F. 2d 175,
182. We fully recognize the force of these competing considerations and the
fact that an accommodation between them is necessary not only in these
cases, but in all libel actions arising from a publication concerning public
issues. In time, Inc., v Hill 385 U.S. 374, 388, 17 L Ed 2d 456, at 467 we
held that '[t]he guarantees for speech and press are not the preserve of
political expression or comment upon public affairs…' and affirmed that
 71

freedom of discussion 'must embrace all issues about which information is

needed or appropriate to enable the members of society to cope with the
exigencies of their period'.''

The court went on to counsel against ‘blind application of New York Times
Co v Sullivan.’ I would respectfully take heed of such counsel.

Before I can consider whether the Sullivan approach can be regarded as

desirable or necessary in Zambia in order to lend greater meaning and effect
to the intention of our are 20, I have to examine the framework of the law
of defamation which is currently available to us. As Mr Sikatana correctly
submitted, I have to bear in mind the exceptions under at 20, especially that
relating to reputation which has not been limited to private or official
reputation but is a right necessarily guaranteed to everyone. I am also alive
to the provisions of the Defamation Act which in s 7 (for fair comment) and
s 6 (for justification) offer relief by permitting a reasonable margin of
misstatement of facts, one of the matters that preoccupied the court in
Sullivan. Section 9 of the Act offers relief by giving the newspapers
qualified privilege in the circumstances set out in the section and the
schedule, details of which I need not here recite save to observe that the
qualified privilege covers a fairly wide range of subjects of public interest.
Again s 10 offers relief for non-malicious libels published without actual
malice and without gross negligence under the conditions described in the
section to which reference should be made for its full term and effect. These
were some of the obvious benefit and promotion of free speech and press. I
have also considered the common law applicable, which is the same as that
in England and, in this regard, I have had a quick look at a Gatley on Libel
and Slander (8th edn, 1981) especially in the passages dealing with the
public interest and comment on matters of public interest. Paragraph 695
discusses whether the press have any special rights not shared with everyone
else to make a comment upon a public officer or person occupying a public
situation and concludes that they do not. On the authorities therein cited, a
journalist may go to whatever lengths the ordinary citizen may go and,
except where the statute law otherwise provides, the range of his assertions,
his criticism, or his comments, is as wide as, and no wider than, that of
everyone else. Again the authorities discussed in para 884 show that the
limits of comment on a matter of public interest are very wide indeed,
especially in the case of public persons. When under attack, those who fill
public positions must not be too thin-skinned. They are also taken to have
offered themselves to public attack and criticism and the public interest
 72

requires that public conduct shall be open to the most searching criticism. In
my considered opinion, the so-called public official doctrine urged by Mr
Sikota already receives recognition though not exactly in the manner
proposed by Sullivan. Even the so-called ‘Fish Tank’ theory whereby the
public conduct of public persons is subjected to constant observation and
scrutiny is already otherwise recognised. The chilling effect of libel actions
on the freedom of the press so vital to democracy is universally accepted
although the strategies to counter this may differ. The Americans came up
with Sullivan. The English in the Derbyshire County Council case came up
with disallowing local and central government organs. They have also
encouraged a wider scope of comment on public matters. With regard to
false material, the Defamation Act already mitigates in some way the
common law principles which condemn misstatements and attach unfairness
to any comment which is not well grounded. All these matters formed the
basis of the discussion in Sullivan which sought to modify these shared
principles in order to straighten free speech and press and impose fetters on
public plaintiffs. The common law as developed through the cases and
generally also has an established set of principles, though some still evolve
as circumstances change or arise. Thus the matters to be proved by a
plaintiff and those to be proved by the defendant are fairly well settled
whether the defence is non-publication or non-reference, lack of defamatory
meaning, consent of the plaintiff, justification, absolute or qualified
privilege, fair comment, apology and payment into court under Lord
Campbell’s Acts, offer of amends under the Defamation Act, accord and
satisfaction, and in the case of slander only, lack of special damage where
required or remoteness of the same, mere vulgar abuse, and so on. The
principal defence in the cases before me is that of fair comment on matters
of public interest. The common law has evolved a number of considerations
which would establish malice or render a comment unfair. The effect of
Sullivan was to narrow quite considerably, in relation to a public official,
the range of factors that would prove malice or render a comment unfair. It
also extended quite considerably the relief available to the press whose
injurious shortcomings were to be given a generous amnesty. It also
established a novel type of qualified or conditional privilege available to all.

Our Constitution in art 20 recognised both the freedom of the press and the
right to reputation. A balance has to be struck and I do not consider that a
good balance can be struck by shifting the burden or standard of proof, nor
by straining to discover a new qualified privilege, nor by immunising
falsehoods to any greater extent than the Defamation Act already provides.
 73

Let me make it clear that I fully endorse the view that some recognition
ought to be given to the constitutional provisions in art 20 and I accept that
impersonal criticism of public conduct leading to injury to official reputation
should generally not attract liability if there is no actual malice and even if,
pursuant to s 7 of the Defamation Act the truth of all facts alleged is not
established if the imputation complained of is competent on the remainder
of the facts actually proved. However, I would reject the proposition in
Sullivan to the extent that it sought to legalise character character
assassination of public officials or to shift the burden of proof so that
knowledge of falsity or recklessness should be proved by the plaintiff and to
a degree of convincing clarity. In this regard and although I do not
necessarily wish to follow the way they sought to give recognition to their
own constitutional provisions, I find that the Australians properly rejected
the Sullivan approach in Theophanous v Herald and Weekly times Ltd
[1994] 3 LRC 369, 124 ALR 1. The High Court of Australia said ([1994] 3
LRC 369 at 391-392, 124 ALR 1 at 23-24):

''However, once it is acknowledged, as it must be, that the existing law

seriously inhibits freedom of communication on political matters, especially
in relation to the views, conduct and suitability for office of an elected
representative of the people in the Australian Parliament, then, as it seems to
us, that law is inconsistent with the requirements of the implied freedom of
free communication. The law of defamation, whether common law or
statute law, must conform to the implication of freedom, even if conformity
means that plaintiffs experience greater difficulty in protecting their
reputations. The interests of the individual must give way to the
requirements of the Constitution. At the same time, the protection of free
communication does not necessitate such a subordination of the protection
of individual reputation as appears to have occurred in the United States.
For that reason the defendant should be required to establish that the
circumstances were such as to make it reasonable to publish the impugned
material without ascertaining whether it was true or false. The publisher
should be required to show that, in the circumstances which prevailed, it
acted reasonably, either by taking some steps to check the accuracy of the
impugned material or by establishing that it was otherwise justified in
publishing without taking such steps or steps which were adequate. To
require more of those wishing to participate in political discussion would
impose impractical and, sometimes, severe restraint on commentators and
others who participate in discussion of public affairs. Such a restraint would
 74

severely cramp that freedom of political discussion which is so essential to

the effective and open working of modern government. At the same time, it
cannot be said to be in the public interest or conducive to the working of
democratic government if anyone were at liberty to publish false and
damaging defamatory matter free from any responsibility at all in relation to
the accuracy of what is published. In other words, if a defendant publishes
false and defamatory matter about a plaintiff the defendant should be liable
in damages unless it can establish that it was unaware of the falsity, that it
did not publish recklessly (i.e., not caring whether the matter was true or
false) and that the publication was reasonable in the sense described. These
requirements will redress the balance and give the publisher protection,
consistently with the implied freedom, whether or not the material is
accurate. In one other respect the Sullivan concept of actual malice calls for
some justification. As already noted, the common law connotation of malice
embraces ill-will, spite and improper motive. There is an argument for
saying that 'actual malice' should likewise extend to such motivating factors.
However, it seems to us that, once it is accepted that it is necessary to show
that the publication was reasonable in the sense to which we referred, there
is no occasion to include malice according to its common law understanding
as an element in the test to be applied. It will be noted from the preceding
paragraphs that we do not consider that the plaintiff should bear the onus of
proving that the publication is not protected. In our view, it is for the
defendant to establish that the publication falls within the constitutional
protection. That approach accords with the approach that the courts have
taken in the past to proof of matters of justification and excuse and we are
not persuaded that the constitutional character of the justification should
make any difference to the onus of proof. Whether the defendant has acted
reasonably will involve consideration of any inquiry made by the defendant
before publishing that is a matter peculiarly within the knowledge of the
defendant.''

If we were in the same boat with the Americans and the Australians, I would
hide with the Australians and the way they have proposed to protect the
freedom to debate political issues and the fitness of a politician to hold
office. In both countries, they distilling some principles by implication after
finding that their Constitutions required such an exercise. In contrast, our
own Constitution is less vague, though I agree with the general principle of
not simply allowing the existing law of defamation to operate without due
regard to the need to lend greater meaning and effect to the art 20 provisions.
The dilemma is that our Constitution attaches equal importance to freedom
 75

of the press and the right to reputation, without distinction whether such
reputation belongs to a private or public individual. I have agonised and
given very careful consideration to the competing propositions that it is for
the interests of society that the public conduct of public men should be
criticised without any other limit than that the writer should have an honest
belief that what he writes is true; and the equally important public interest in
the maintenance of the public character of public men for the proper conduct
of public affairs which requires that they be protected from destructive
attacks upon their honour and character if made without any foundation. I
have come to the conclusion that there is no need to formulate a new set of
principles to impose new fetters on the right of a public official to recover
damages. However, in order to counter the inhibiting or chilling effect of
litigation, I am prepared to draw a firms distinction between an attack on the
official public conduct of a public official and imputations that go beyond
this and attack the private character of such an official which attack would
be universally unsanctioned. I am also prepared, when considering the
defence of fair comment on a matter of public interest arising from the
conduct of a public official, to be more generous and expansive in its
application. Of course, it would be unwise for me to attempt an exhausive
description of what would be a generous application of the defence but it
seems to me that where an allegation complained of can properly be
regarded as comment on the conduct of a public official in the performance
of his official duties or on conduct reflecting upon his fitness and suitability
to hold such office, freedom of speech and press can best be served in
Zambia by the courts insisting upon a higher breaking point, or a greater
margin of tolerance than in the case of a private attack before an obvious
comment based on facts which are substantially true can be regarded as
unfair. Although considerably stretched at the seams, the existing defence
would remain intact and the public official still able to recover damages for
comment that is rendered unfair by any outrageous or aggravating features in
the case.

In a sum, it is my considered opinion that the constitutional protection of

reputation and free speech or press can best be balanced in Zambia, when
the plaintiff is a public official who has been attached in that character, by a
more generous application of the existing defences. The chilling effect of
litigation would thereby be mitigated to some extent, just as it would be
considerably eased by the courts constantly seeking to promote free speech
and press by keeping a careful eye on the size of awards which perhaps are
the true chilling factor especially if they involve any exemplary or punitive
 76

element. What is certain also is that, as Mr Sikatana suggested, since both

the freedom of the press and the right to reputation are recognised in art 20,
no higher value can be placed on the one as against the other nor can one
part of the Constitution be said to conflict with another part in any
‘unconstitutional’ way since the whole document legalises itself. The trick
is to balance the competing rights and freedoms and on principles, as I hoe I
have managed to explain, the resolution lies in the application of the
existing law in a more imaginative and innovative way in order to meet the
requirements of an open and democratic new Zambia. In this way, the press
can be given some breathing space without the courts suggesting that
freedom of the press will be freedom to defame. So much being premised, I
now turn to the cases before me.

I heard evidence from 21 witnesses. The plaintiff testified on his own behalf
and called one witness, while the defendants called 19 witnesses. In all the
cases, there was no dispute that the articles complained of were published
and that they explicitly referred to the plaintiff. The action 1992/HP/1395
was based on an article headed ‘Michael Sata’ in the newspaper dated 22 to
28 May 1992 and the article appeared on what loosely be termed the
editorial page. The plaintiff relied on the natural and ordinary meaning
and/or innuendo and attributed several defamatory imputations to the article.
The defence put forward was one of fair comment. The article started by
noting that the plaintiff was a political survivor, adding that in the second
Republic ‘he survived vetting on several occasions.’ The evidence which I
have accepted is that the plaintiff was vetted only on one occasion and not
several as alleged. The vetting referred to the practice in the past when the
leadership of the sole party then allowed used to screen candidates for
election and bar those whose candidature was considered to be inimical to
national interests. I do not regard the reference to vetting or the error in the
number of occasions as defamatory. Next, the newspaper wrote that in 1990
the plaintiff’s political prostitution prompted the former president’s decision
to fire him. To call a politician and a minister a political prostitute is clearly
defamatory. The defendants’ position was that this statement was a fair
comment being a conclusion which could legitimately be made from the
facts. Of course, I do not doubt the principle that an allegation can still be a
comment if it is an inference of fact which could legitimately be drawn from
other facts. However, where a bold allegation of this kind cannot be distilled
from other facts stated or indicated in the publication complained of: See
Kemsley v Foot [1952] 1 All ER 501, [1952] A.C. 345. I am prepared to
stretch the requirement of indication to any facts shown to be notorious or at
 77

least known to the person or persons to whom the libellous allegation is

published. If the facts are not so indicated or referred to, then it has long
been accepted that the statement of opinion will stand in the same position
as an allegation of fact: see Gatley para 696. In reference to this allegation,
the editor of the defendant newspaper, Mr Phiri, testified that the conclusion
was based on reports they had received and the fact that the plaintiff had
accepted a post in the MMD government contrary to his earlier declaration
at a political rally that he was not interested in a political position. Mr Phiri
said that it was left up to the readers to figure out the political prostitution
which had prompted President Kaunda to fire the plaintiff. Mmembe, the
editor-in-chief and managing director of the paper, testified that the plaintiff
was labelled a political prostitute for jumping from one party (the UNIP) to
another (the MMD) and for having associated with the people in the MMD
before he was fired. None of these explanations was available to the readers
and they were neither offered nor was it indicated in the publication in order
to afford the readers the opportunity to form their own judgment on the
matter and to judge whether the defendants’ conclusion was competent or
not. The reader was left to speculate and think that the paper must have its
own secret facts for making such a bold allegation, unsupported by anything
available to the readers. In any event, even had the reasons revealed to the
court been made available to the readers, I cannot imagine that anyone
would consider a person to be a political prostitute for joining a party of his
own choice after the reintroduction of a new political dispensation allowing
for the formation of other parties. This allegation was patently injurious to
the plaintiff in his private and personal character and in his political and
official character and cannot conceivably be protected by the defence put
forward, even on a more generous application of it as I have earlier
proposed.

The article complained of went on to describe the plaintiff in other

extravagantly uncomplimentary terms. These included a list actions
described as ‘thoughtless’ such as the razing of houses in Kanyama, his
alleged order to fire striking workers, the alleged awarding of contracts to
associates, riotous behaviour in Chadiza and outrageous or intolerant
behaviour on television. There was a reference to investigations against the
plaintiff by the Anti-Corruption Commission and the plaintiff’s misleading
the nation about the presence of an arms cache at Sindamisale. After
criticising the President for not dismissing the plaintiff, the defendants
concluded by saying ''Our sincere conclusion is that there is nothing
“honourable” about this clearly dishonourable man.''
 78

I have given anxious consideration to the rest of this generally defamatory

article. The examples of allegedly thoughtless actions are subjects that had
been reported in various other newspapers with a national circulation and on
the electronic media. The evidence that I heard from the witnesses,
including General Chinkuli on the arms cache, together with the
documentary exhibits, especially The Times of Zambia and Zambia Daily
Mail newspapers, has satisfied me that there was a sufficient substratum of
facts on which to base the comments made. The question is not whether I
agree with the comments or the conclusions but whether an honest person,
however prejudiced, might hold such opinions. Even the disputable
conclusion that there was nothing honourable about the plaintiff was
prefixed by a list of circumstances and the reader was free to form an
independent opinion and to judge if the paper was right or wrong. I am, of
course, alive to the contention on the part of the plaintiff that the defendants
either did not substantiate the facts or made mistakes. For example, I am
aware that the plaintiff has never accepted that he had personally ordered
the razing of houses. However, other daily newspapers produced in
evidence as exhibits showed that the plaintiff was in the forefront in
defending this action by the local council. They also showed that the
plaintiff was held accountable in his official capacity as the minister of local
government at the time, rather than in his private capacity. That the plaintiff
took up the official defence of the razing of houses was also manifest in the
‘Face to Face’ television programme which was played back to the court
during these proceedings. I am satisfied that, by the time the defendants
listed the razing of houses as one of the plaintiff’s allegedly thoughtless
actions, the public and general readership of newspapers in this country had
already been conditioned by previous publications to attach official blame.
The example that the plaintiff ordered the firing of striking workers was not
supported by any evidence whether direct or indirect in these proceedings.
However, it was just one example out of several given to support the
comment about being thoughtless and the Defamation Act applies to the
failure to establish the one example. The example regarding the award of
contracts to associates was not borne out by the evidence concerning the
contract awarded to Merzaf to build houses in Chilenje township. I find that
the plaintiff was not guilty of any wrongdoing and this was borne out by the
evidence of Mr Russell of the Anti-Corruption Commission. However, the
evidence-including the ‘Face to Face’ programme – showed that the plaintiff
has been reported on the subject and had stoutly defended the contract, once
again leading to public attribution of the now costly project to him in his
 79

official capacity. Indeed, I accept the evidence that this contract ran into
difficulties the minute the plaintiff left the Ministry of Local Government
and Housing and the successors refused to give it the support which the
plaintiff had given in his time. There were other contracts concerning the
sale of council houses which the plaintiff had to facilitate or authorise. The
plaintiff himself gave me a long list of names, including that of his wife, as
being the people allowed to buy council houses. I am satisfied that the
example about awarding contracts was supported by a sufficient amount of
actual fact. Concerning the alleged riotous behaviour in Chadiza, there was
indirect evidence given although no previous newspaper reports were
produced to me. From the evidence of some defence witnesses, including
Mr Nkolola of ZNBC, I accept that there was an incident in Chadiza where
some mourners from the ruling party were stoned at a funeral and which was
even discussed on a television programme although the tape for this could
not be found. There was nothing to show that the plaintiff provoked the
incident. The television programme publicly seen by viewers was also one
of the programmes relied on to support the allegation that the plaintiff
behaved outrageously and intolerantly on television before the whole nation.
The other was the ‘Face to Face’ programme shown to the court where the
plaintiff was interviewed by Mrs Goretti Mapulanga, a well-known
interviewer on our small screens. In that programme, the plaintiff criticised
the media in general and the first defendants by name for their shortcomings
when reporting on issues. He defended the award of the contract to Merzaf,
the razing of houses by the council, early retirements for council workers
and the handling of the funds meant for arrears of salaries and allowances
which the government had inherited. The general impression gained by this
court after watching the replay of the programme was that both the guest
and the hostess were quite rumbustious, jovial and slightly disorderly. I am
satisfied that the example and comment regarding the performance of the
plaintiff on television was based on a sufficient substratum of fact. Again
the article went on to refer to the plaintiff’s denials that the Anti-Corruption
Commission was investigating him. The evidence before me established the
factual basis for the comments made. The global conclusion in the article
about the plaintiff not being honourable was certainly harsh and probably an
opinion not shared by anyone else but, as I have already stated, it was
prefixed by the examples which were listed. The law protects even the
minority opinion of a defendant who honestly comments on a public official
and has facts to lean on.
 80

Except for the allegation that the plaintiff was a political prostitute, on
which I find for him, I find for the defendants on the rest of the article in
cause 1992/HP/1395. On the evidence, and if necessary calling in aid the
Defamation Act, the defence of fair comment is available on these other
allegations or comments having regard to such of the facts as have been
established or were already notorious in the public domain.

In cause number 1992/HP/1804, the complaint concerned the edition of 31

July to 6 August 1992. There were two articles, that is the main story on the
front page headlined ''King Cobra meets his Waterloo-Lupunga clobbers
Sata'' and an editorial under the heading ''Sata(nic) deeds''.

The gravamen of the main story was that the plaintiff was physically
clobbered by another minister in the National Assembly motel bar room
when the plaintiff provoked the other by his belligerence and abusive
language. The first defendant described the incident in gloating terms
showing that blows were exchanges and the plaintiff ended up lying helpless
on the ground, hurt and humiliated, and had to be rescued by the security
men from further damage. The plaintiff’s account of the incident was
characterised by excessive economy on the truth and only skilful and
determined cross-examination prised an admission from him that any ill-
tempered confrontation had taken place at all between himself f and Minster
Lupunga. I have considered the evidence from the eye witness. There are
four stages of drunkenness, namely jocose, bellicose, lachrymose and
comatose. The evidence and the descriptions of the events left me in no
doubt at all that the ministers, and probably some of the witnesses had
passed the first stage. The eye witnesses called by the defence were
basically agreed that a quarrel erupted and Lupunga violently charged
towards the plaintiff, knocking down the witness Nganga who was in the
way, and with, quite clearly, obvious intent. One witness said the plaintiff
was actually violently pushed so that he fell against the back of a sofa chair
while the other said that Lupunga was restrained before he could carry out
his intentions so that the plaintiff was simply at the risk of being clobbered
rather than that he was clobbered. Both eye witnesses denied that fists flew,
or that the plaintiff ended up lying on the ground or that any security men
intervened. I agree with the witness who said the defendant had
sensationalised the incident. I find they were gloating and full of glee over
the supposed thrashing of the plaintiff. The bottom line, however, was that
violent confrontation which disturbed the peace and was unsuitable for
ministers to participate in did take place. This I find as a fact.
 81

What was the sting of the libel complained of in this particular article? The
plaintiff pleaded in his statement of claim that it was defamatory to impute
that he was physically incapable of defending himself. I thought that the
plaintiff did nor pursue this line of complaint with any conviction and I do
not think that it would be defamatory to report that someone has been
beaten. The plaintiff, I find, was not in fact beaten and the gloating style
adopted by the paper grossly exaggerated the physical confrontation that did
take place. The fracas itself was not something any minister could be proud
of and it was not wrong to suggest that a bar-room brawl of this kind was
dishonourable and that those who participated were unruly. The opinion
was amply supported by the true facts once the overdramatisation is
discounted. Indeed, the cause of action based on this particular article came
very close to collapsing of its own inanition. I find for the defendants on
this one. The next article in the particular edition was the editorial headed
''Sata(nic) deeds''. The article is worth reproducing and it reads:

''Not only is your edition of the Weekly Post this week a celebratory
one, commemorating our first anniversary, but it is also rather 'Satamanian'.
If newspaper printing costs were low, and newsprint cheap, Sata’s exploits
could quite easily provide copy to fill a tabloid newspaper every week. Two
months ago, we said there was nothing honourable about this clearly
dishonourable man, and we also lamented about his risky behaviour at a
Chadiza funeral, when he endangered the lives of dignified men, among
them, Home Affairs Minister Newstead Zimba. Soon after that, his foolish
behaviour during a ZNBC panel discussion, under the guise of 'chimbuye',
was quite objectionable. We are not surprised that his penchant for
controversy led to his being beaten last Sunday. It was bound to happen.
And were it not for the brave security guard on duty, you might have been
reading an obituary of the once notorious King Cobra. This time, however,
the motel fracas not only endangered Lupunga’s reputation, but it could have
also led to his imprisonment on charges of assault, or worse, manslaughter
or murder, if things had gotten more out of hand. But as for Sata, he would
have had nothing to lose, not even a loss of good reputation, since he has
none. This man is not only unruly, but he is also greedy. Early this year,
when Lusaka City Council had stopped the sale of its houses. Sata ordered
that a house be sold to his father-in-law. And now when the entire Avondale
area is all but dry for lack of water, he has directed the Lusaka Water and
Sewerage Company to deliver a tanker of water every week to Sharry Hill
house, one of his Avondale properties. Our ability to comment on his on
 82

going court case with the Zambia State Insurance Corporation concerning
his activities at the Avondale Housing project is curtailed by legal sub judice
restrictions. But early this year, Sata diverted K60 m earmarked for LCC
workers’ salaries, to pay for the Merzaf project in Chilenje. Now, after
bashing ZULAWU and promising that by 30 June, its members’ salary
increments would be paid, he has diverted K1.6 bn to the Merzaf project and
to a fixed deposit account at Standard Bank. While President Chiluba has the
prerogative to hire and fire his ministers, keeping track of the misdeeds and
unscrupulous behaviour of Michael Chilufya Sata is for us, becoming rather
tiresome.''

Can be seen, the alleged Sata(nic) deeds have been tabulated. The article
contains in the main comments based on facts stated or indicated in the
article itself. Such facts have been sufficiently established by the evidence. I
have been troubled though by the allegation that the plaintiff would have had
nothing to lose out of the incident at the motel: ''not even a loss of good
reputation, since he has none.''

The law presumes that everyone has a good reputation and where this is
shown not to be the case, a plaintiff with a bad reputation is equally entitled
to have what is left of it protected from further damage. However, in the
context of the article as a whole, it was clear that the defendants were
making the allegation as an inference of fact which none the less remained a
comment or opinion, on the basis of the events tabulated in the first half of
the article.

The article then went on to allege that the plaintiff was ‘not only unruly, but
he is also greedy’. To support the latter allegation of greed, which was the
sting of the libel, the article listed the sale of a council house to the
plaintiff’s father-in-law, the arrangement for the delivery of water to his
Avondale residence, his court case which in the event he actually won
against the developers of Avondale, diversion of K60 m, money intended for
salaries and the deposing of K1.6 bn which was meant for workers’ salaries.
‘Greedy’ in this context and in its ordinary sense denoted an insatiate
appetite to acquire wealth or material benefits. It is a very personal
characteristic and could not have been criticism of the plaintiff in any
official capacity. The evidence which I heard did not support any suggestion
of personal benefit in the derogatory or infamous sense suggested by the
article. No evidence was led to support greed on the part of the plaintiff in
connection with his court case mentioned in the article, nor was any
 83

evidence adduced to establish the fact of, let alone the greed in allegedly
diverting K60 m for workers’ salaries to the Merzaf contract. The evidence
led did not reveal that there was any personal gain on the rest of the
transactions listed, with the exception of the deliveries of water in a tanker
from which service other Avondale residents also benefited. It is my
considered opinion that this portion of the editorial article imputed a corrupt
or dishonourable motive which was not warranted by the facts. Greed was
not an inference which a fair-minded person might reasonably draw from
such facts and cold not, I find, represent the honest opinion of the writer. On
my expansive application of the defence of fair comment when it relates to
the official conduct of a public official, the defence would have been
available if the allegation had not been of so personal a trait as greed so that
mere unfairness of the comment for imputing defamatory but impersonal
motives would have not been fatal. However, since a description that a
person is greedy and the imputation that the transactions cited were
examples of and, by implication, motivated by greed as it is understood in its
ordinary sense was a description attacking the personal and private character
of the plaintiff, there is no occasion for departing from the general principle.
This principle is that fair comment cannot avail the defendant where the
allegation made cannot fairly and reasonably be inferred from the facts. The
defamatory allegation then stands unsupported and is on the same footing as
an allegation of fact: see Cobbet-Tribe v Zambia Publishing Co Ltd [1973]
ZR 9. In the event the conclusion in the editorial under discussion that the
plaintiff’s behaviour was unscrupulous was equally insupportable in view of
my finding on the question of greed although, for the purpose of my
decision, the relevant sting was only in the allegation that the plaintiff was
greedy. I find for the plaintiff to the extent indicated.

In the action 1993/HP/821 which was tried together with the consolidated
actions, the edition of the paper was dated 8 to 14 January 1993, and there
were two articles complained of together with a cartoon. The front page
article was headed ‘ACC hands over King Cobra docket to DPP over
financial irregularities-Sata faces arrest’. The article concerned a sum of
K1.6bn government grant to local authorities which was meant for, inter
alia, salary increases and arrears as a result of negotiations between the
unions and the representatives of the councils. The evidence which I heard
established that it was entirely true and the ACC had investigated and
handed over a docket to the DPP with a view to secure his consent to the
prosecution of the plaintiff under the Corrupt Practices Act for failing to
disclose interest in a contract and abuse of office in connection with the
 84

plaintiff’s orders to his officials that they must place the bulk of the grant
money (K1.2 bn) in a deposit account with Standard Chartered Bank, a bank
in which he had shares. It was also true that the plaintiff did not take the
advice of Mr Mapala, his Permanent Secretary, about the choice of bank
since another bank was offering a better rate of interest. The plaintiff
explained why he had chosen the particular bank but that is beside the point.
The point is that the article is that the article was so factually true that the
witness from the ACC, Mr Russell, suspected there had been a leak and the
first defendant had had access to the docket. A summary of the report of the
ACC was subsequently distributed by the President through his aides at a
State House press conference. Although there may be nothing commendable
about the way the information was obtained, the report was substantially the
truth and none of the imputations pleaded by the plaintiff can be entertained.
The inferences and comments on such a true representations of the facts
were neither defamatory nor actionable, and I so find.

The next article in the paper was an editorial headed ‘Remove Sate.’ In
unmannerly and extravagant choice of diction, the first defendant urged the
President to remove the plaintiff from his ministerial office. The first
paragraph read:

''We have said it before and we will say it again that Michael Chilufya
Sata is not fit to be a minister or hold any public office. Sata is not only a
public nuisance but he is also a liar as well as a selfish, unfeeling and
cantankerous character.''

The defendants relied on previous publications and incidents as well as the

one about the imminent arrest. They warned of some harm to the presidency
and referred to the plaintiff as one of the petty and unscrupulous politician.
They suggested the President remove the plaintiff without waiting for the
Paris Club, among others, to show contempt for corruption and said the
plaintiff was beyond redemption. The paragraph I have quoted and the other
aspects I have isolated cumulatively amounted to a flagrant attack on the
very core of the personal character and the private and public reputation of
the plaintiff. I see little if any comment in the allegations of fact and the
imputations made. The first defendants were asserting that the plaintiff was
this or that and I am myself unable to see that the allegations could fairly and
reasonably be inferred from the facts so as to still be a comment appears as
an inference drawn from those facts, any injustice that it might do will be to
some extent negatived by the reader seeing the grounds upon which he
 85

unfavourable inference is based. But if fact and comment be intermingled so

that it is not reasonably clear what portion purports to be inference, he will
naturally suppose that he injurious statements are base on adequate grounds
known to the writer, though not necessarily set out by him. In the one case
the insufficiency of the facts to support the inference will lead fair-minded
men to reject the inference. In the other case it merely points to the
existence of extrinsic facts which the writer considers to warrant the
language he uses.’

I am aware that the Hunt case need to be qualified by more recent

developments, namely the facts on which a comment is made do not always
have to be set out in the publication complained of but can be implied from
the terms of the publication if indicated with sufficient clarity. The only
indication which was there in this case was that the first defendant was
relying on previous publications by them and others and on the same
edition’s front page story. However, the number of independent and original
allegations of positive fact in the passages I have quoted especially the
suggestion of corruption are such that there was, in my considered view, no
comment at all, not even one based on inference. If I am wrong in this
conclusion, I would still find the passages indefensible as fair comment on
the ground that the comment, if it was indeed comment, was not justifiable
or warranted by the facts available. I find for the plaintiff on this.

Finally, there was next to the defamatory editorial a cartoon depicting a large
snake with a human head and which was pinned down by a prong on which
was inscribed ‘1.6 billion’. The evidence showed that the plaintiff has the
nickname of King Cobra and the cartoon related to the front page story and
the editorial comment. I agree entirely that the cartoon cannot be construed
in isolation from the front page article and the editorial. Although it was not
funny, the cartoon was none the less a satirical comment to the effect that the
plaintiff had been caught in some wrongdoing regarding the money referred
to in the other article. The nature of the wrongdoing concerning this money
was fully discussed in the articles and it would be strange for any reasonable
reader to ignore the articles and to read meanings into the cartoon
independently of those articles. I am aware of the argument that even an
illiterate might look at a cartoon and come to some unfavourable conclusions
based on the fertility of the imagination. Illiteracy, as we all know, is a
misfortune and not a privilege and the standard to be applied in a case
arising out of the written word is that of the reasonable reader, that is, a
literate reasonable person who can read the captions and relate pictures to
 86

their context. Any meanings assigned by an out-of-context illiterate

imagination would not qualify as the reasonable understanding of the
judicially acceptable reasonable average person who ordinarily reads
newspapers. I am aware of the meanings contended for by the plaintiff both
in the pleadings and in the evidence. In context, the cartoon added nothing
much to the front page article and was therefore fair comment based on true
facts the cartoon has the same flavour as the lead story and my considered
view is that the defence of fair comment applies to this otherwise
defamatory caricature.

In sum, the plaintiff succeeds in the consolidated action only in respect of

the allegations that he was a political prostitute and that he was greedy. In
the other action, the plaintiff succeeds only in respect of the flagrant attack
in the ‘Remove Sata’ editorial where the various imputations I have already
alluded to were made, especially the allegation of corruption; imputations
which would stab through even the thicket skin of any public person. These
were serious libels but I bear in mind the whole of the context and the
circumstances, including any role contributed by the plaintiff himself in
exposing himself to frequent attention of the press. He has had opportunities
to take a retaliatory swipe at the defendants as the court saw when the video
tape of the ‘Face to Face’ television programme was played. I am also alive
to the facts that during these proceedings, the plaintiff was less than candid
at times and even managed to spin an elaborate tale that he was in India
when the President held a press conference and distributed a summary of the
report by the ACC. The video tape produced by the witness Nkoloka showed
the plaintiff was present and that was the day his transfer to the Ministry of
Health was announced. I have taken into account the offer of the right to
reply made by the first defendant which cancels quite substantially any
failure to retract and apologise. The defendant has also, in a way, won on
some aspects of the case; just as the plaintiff has also not suffered much
actual damage.

Above all, however, I have taken into account the submissions by Mr

Sikatana and Mr Sikota. I have considered the Kapwepwe v Zambia
Publishing co Ltd [1978] Z.R. 15 and bear in mind that the primary object of
awarding damages for defamation is to offer vindication and solatium;
money cannot really be compensation in such cases. The principles of
exemplary or punitive damages discussed in Kapwepwe and other cases
apply only in an appropriate case where the general damages, incorporating
any aggravating element, are insufficient to drive home to a defendant the
 87

error of his way. I am myself not in favour of encouraging the notion of

punishment in a civil case, especially where there has been little actual loss
suffered by the plaintiff. I did also say much earlier on that I considered the
true chilling effect on the freedom of speech and press to emanate from the
possibility of awards which are exorbitant and crippling. There was also a
prayer for a perpetual injunction to restrain the defendants from repeating
the libels complained of. With the vindication and consolation afforded by
this judgment, I do not consider that it would be appropriate to restrain the
defendants forever. The plaintiff is a political public figure and a permanent
injunction, like any excessive award, would be certain to inhibit free debate
even on current and future subjects. Newspapers which cause damage while
performing a vital public service should only be made to pay the freight but
not be altogether stopped dead in their tracks.

Taking all the circumstances into account, I award in respect of the

consolidated action the sum of K500,000 (five hundred thousand Kwacha)
and for the 1993 action another sum K500,000 (five hundred thousand
Kwacha) making a total of K1m compensatory damages by way of solatium.
I enter judgment for the plaintiff in that amount with costs to be taxed in
default of agreement.
 88

THE PEOPLE v ROXBURGH (1972) Z.R. 31 (H.C.)

HIGH COURT
DOYLE, C.J.
28TH FEBRUARY, 1972
(REVIEW CASE NO. 71 OF 1972)

Flynote

Court - Jurisdiction - Extra-territoriality - Limited to citizens of Zambia -

Penal Code (Amendment) Act of 1970, S. 7 construed.
Criminal law - Bigamy - Offence committed by second bigamous marriage.
Criminal procedure - Jurisdiction - Effect of s. 10 of Criminal Procedure
Code - High Court's exclusive Jurisdiction to try bigamy offence -
Magistrate must take judicial notice of own jurisdiction and orders under s.
10 of Criminal Procedure Code.

Headnote

The accused was convicted of the offence of bigamy contrary to' s. 145 of
the Penal Code, Cap. 6 in the Subordinate Court of the First Class, Lusaka.
The case came before the High Court on review

Held :

(i) A court does not have unlimited jurisdiction to try offences

committed outside the territorial boundaries of Zambia (page 33,
lines 1-7).

(ii) The Penal Code (Amendment) Act 1970, s. 7 gives courts

jurisdiction to try Zambian citizens for offences committed outside
Zambia and to try non - Zambian citizens if the offence is partly
committed in Zambia (page 34, lines 1-6).

(iii) The offence of bigamy is committed by second marriage and the

first marriage is not part of the offence, merely creating the
necessary status (page 34, lines 10-15).
 89

(iv) A magistrate must take judicial notice of his own jurisdiction and of
orders made under the Criminal Procedure Code, s. 10 which
reserve trial of certain offences to the High Court (page 34 lines 27-
34).

Cases cited:
(1) McCleod v Attorney-General [1891] A.C. 455

Legislation referred to:

Penal Code, Cap. 6, s.145
Penal Code (Amendment) Act of 1970, s.7
Criminal Procedure Code, Cap. 7, s.10
Offences against Persons Act 1861 (England) s.57

For the accused: G.C. Walisko, of Christopher, Russell Cook and Co.
For the People: S.D. Mhango, State Advocate.
__________________________________
Judgment

DOYLE, C.J.: In this case the bigamous marriage was entered into in the
United States of America, and the Defendant is not a citizen of Zambia. The
learned magistrate posed a question of jurisdiction to himself. He posed one
question and he answered another. The question he posed to himself was
'Can a man who resides in Zambia be tried by a Zambian court for a crime
which he is alleged to have committed in some other country?' Then he went
on to say: ' I propose to answer this question. Yes, he can be'. He then
completed his judgment by this: 'At this stage my ruling is that this court has
jurisdiction to try any crime committed anywhere in the world provided the
accused is within the court's jurisdiction.' A more absurd proposition I have
yet to hear. That not only answers his first question, but states that any
person who arrives in an aeroplane and stops in transit in Zambia and has
committed an offence in another country can be tried by our courts. It is a
startling proposition and one with which I would hold no truck.

However, let me go back to the question whether residence creates such

jurisdiction. The learned magistrate argued that this limitation of jurisdiction
has no place in a modern State. I would be very pleased to learn in what
modern States this doctrine prevails. I do not, of course, knots the law of all
States, but I am not aware of any modern State which
 90

1972 ZR p33
DOYLE CJ

claims this world-wide jurisdiction. Solely on principle there is a very good

reason why the jurisdiction should not be claimed. If it were correct that the
Zambian courts had this enormous jurisdiction, then any person could come
and complain to the police about crimes having been committed in other
countries by residents of Zambia. Our police would have the duty to
investigate them. That is a task beyond our powers. I have not the slightest
doubt that this extensive jurisdiction does not prevail in Zambia.

Our law was based on the law of England. Section 57 of the Offences
against the Person Act 1861 in England, which deals with bigamy quite
plainly sets out that the second marriage may have taken place in England or
Ireland or elsewhere. This is a clearly stated exception to the normal rule
that criminal jurisdiction is territorial.

Section 145 of the Penal Code, which states the offence of bigamy, does not
make reference to a marriage taking place elsewhere than in Zambia. This
significant change indicates that the legislature was not trying to deal with
the offence of bigamy in relation to such marriages. Furthermore, when
section 145 was enacted it was doubtful whether colonial legislature, as the
Northern Rhodesian Legislative Council then was, had power to legislate for
extra-territorial powers, vice McLeod v Attorney-General [1]. That would be
a good reason for not attempting to do so. The present National Assembly
can pass extra-territorial legislation. No amendment of section 145 has been
made to extend its meaning beyond that which the section had on the advent
of independence. It follows that the meaning remains the same.

The legislature has in fact dealt with extra-territorial criminal jurisdiction in

the Penal Code (Amendment) Act, 1970. Section 7 reads as follows -

7. (1) Subject to subsection (3), a citizen of Zambia who does any act
outside Zambia which, if wholly done within Zambia, would be an offence
against this Code, may be tried and punished under this Code in the same
manner as if such act had been wholly done within Zambia.

(2) When an act which, if wholly done within Zambia would be an

offence against this Code, is done partly within and partly outside Zambia;
any person who within Zambia does any part of such act may be tried and
 91

punished under this Code as if such act had been wholly done within
Zambia.

(3) Nothing in subsection (1) shall render any person liable to be tried
and punished under this Code in respect of any act done outside Zambia
which, if wholly done within Zambia, would be an offence against this Code
if such person has been convicted and punished outside Zambia in respect of
the same act, but, save as aforesaid, any such conviction shall, for the
purposes of any law including this Code, be deemed to be a conviction for
the said offence against this Code.

1972 ZR p34
DOYLE CJ

That section in effect states -

(1) that the Zambian courts have jurisdiction in respect of offences

committed by Zambian citizens anywhere in the world;
(2) that the Zambian courts have jurisdiction in respect of offences
committed by any person, whether a Zambian citizen or not if the offence
has been partly committed in Zambia.

The section by implication disclaims jurisdiction in respect of offences

committed by non - Zambians outside Zambia. It has been argued by the
State that bigamy consists of two criminal acts, one, the first marriage and
two, the second marriage. That in my opinion is not correct. The criminal
act is the second bigamous marriage. The first lawful marriage is not part of
the crime, but merely creates a status in relation to which a crime can
subsequently be committed by a second marriage. I have not the slightest
doubt that this offence of bigamy was committed entirely outside Zambia.

I now turn to the Criminal Procedure Code. Section 10 reads as follows:

10. (1) The Chief Justice may, by notice in the Gazette, order that any
class of offence specified in such notice shall be tried by the High Court or
be tried or committed to the High Court for trial by a subordinate court
presided over by a Senior Resident Magistrate only.

(2) No case of treason or murder or of any offence of a class specified

in a notice issued under the provisions of subsection (1) of this section shall
 92

be tried by a subordinate court unless special authority has been given by the
High Court for such trial.

The Chief Justice has made a number of orders under this section. Bigamy is
one of the crimes of which trial has been reserved to the High Court alone to
consider under this section. The learned magistrate was aware that such an
order had been made, but chose to disregard it. He appears to have been
under the misapprehension that he did not have to take judicial notice of his
own Jurisdiction and that he did not have to take Judicial notice of orders
made under section 10 of the Criminal Procedure Code. In that he also
disregarded the provisions of section 18 of the Interpretation and General
Provisions Ordinance. For all the foregoing reasons it is clear that the
learned magistrate had no jurisdiction to try this offence.

I have asked that this matter should be dealt with in open Court, not because
I saw any difficulty in it, as it was perfectly obvious from the outset that the
magistrate had no jurisdiction, but because the case received a great deal of
publicity. It is desirable that publicity should be given to the fact that the
magistrate adopted a completely wrong - I would almost say perverse-
approach to the question of his jurisdiction.

I would, moreover, go on to say this. The learned magistrate having wasted a

great deal of time on this case then delivered a homily on sentence which
comprised two closely typed foolscap pages. He chose to adopt the status of
some sort of amateur psychiatrist; he gave his judgment in language which
would be better attributed to a Victorian penny novelette.

1972 ZR p35
DOYLE CJ

I do not know from where in the evidence he found the basis for such flights
of fancy as 'The most dangerous game in the world - women', 'The hunter
who would face a charging rhinoceros without flinching' and 'The lion who
became a mouse when confronted by a human female'.This sort of rubbish
should not grace the record. The learned magistrate would be well advised
if, in the courts which are pressed for time, he in future delivers his
judgments concisely and in language more fitting to the courts.

I quash these proceedings in total. The defendant is discharged.

Proceedings quashed
 93

DIRECTOR OF PUBLIC PROSECUTIONS v COLIN BROWN (1980)

Z.R. 42 (S.C.)

SUPREME COURT
BARON, D.C.J., GARDNER AND HUGHES, JJ.S.
21ST AND 22ND MAY, 9TH JULY ,1974
S.C.Z. JUDGMENT NO. 10 OF 1974

Flynote

Employment - Employment permit - Employment without permit - Whether

offence.

Criminal law and procedure - Offences - Whether prohibition without

penalty amounts to offence.
Sentence - First offender - Punishment to be imposed.

Headnote

The respondent was engaged in paid employment without an employment

permit. The Immigration and Deportation Act had a provision prohibiting
that act without stipulating for a penalty. It was argued that no offence was
created without provision being made for a penalty.

Held:

(i) Section 30 of the Immigration and Deportation Act provides a

general penalty for offences and is not limited in its application to
the offences set out in s. 29.

(ii) Where a prohibition is expressed in unambiguous and imperative

terms and the matter is one of "public grievance" a breach of such
a prohibition must be held to be an offence unless the contrary
intention manifestly appears.

(iii) It is a well established principle that where the legislature has

prescribed a fine as an alternative to imprisonment a first offender
should not be sent to prison without the option of a fine unless the
latter punishment is in the circumstances clearly inadequate or
inappropriate.
 94

Cases referred to:

(1) R. v Price (1840) 113 E.R. 590; 1 A.D. & E. 727.
(2) Rathbone v Bundock, [1962] 1 All E.R. 257.

Legislation referred to:

Immigration and Deportation Act, Cap. 122, ss. 19, 29 and 30.

For the appellant: E. L. Sakala, Acting Director of Public Prosecutions.

For the respondent: M. A. A. Yousuf, Yousuf & Co.

___________________________________
Judgment

BARON, D.C.J.: delivered the judgment of the court.

This is an appeal by the Director of Public Prosecutions from a decision of

the High Court, in the exercise of its revisional jurisdiction, setting aside a
conviction and sentence imposed by the subordinate court for contravention
of s. 19 (1) of the Immigration and Deportation Act, Cap. 122 (hereinafter
referred to as the Act). The facts, which are not in issue, are that the
respondent had some years ago come to Zambia under an employment
permit issued in terms of s. 18 of the Act; that permit had long since expired
but the respondent had continued to engage in paid employment.

The respondent pleaded guilty to the charge and was sentenced to four
months' imprisonment; with hard labour. On review the conviction and
sentence were set aside by the learned Chief Justice in the High Court on the
ground that s. 19 (1) does not create an offence.

1980 ZR p44
BARON, D.C.J.

It is convenient to set out certain of the provisions of the Act at this point.
Section 19 reads:
" 19. (1) Save under permit issued in accordance with the provisions
of this Act authorising such employment, no person shall engage in paid
employment under an employer resident in Zambia.
 95

(2) Save in accordance with an entry permit, no person shall for gain
engage in any prescribed trade,business or other occupation.

(3) No person shall commence any course of study at an educational

institution unless he is the holder of a valid entry permit or study permit."

Sections 29 and 30 read:

"29. (1) Any person having been required by notice under section
twenty-three to leave Zambia within a specified period who wilfully remains
in Zambia after lithe expiry of such period shall be guilty of an offence.

(2) Any person entering into or departing from Zambia who is

required by section nine or thirteen to appear before an immigration officer
and who fails to comply with the provisions of either of these sections shall
be guilty of an offence.

(3) Save under temporary permit, any person who belongs to Class C
of the Second Schedule and who returns to Zambia Shall be guilty of an
offence.

(4) Any person who fails to comply with any lawful requirement
made in accordance with the provisions of section seven shall be guilty of an
offence.

(5) Any person who assaults, resists or willfully obstructs any

immigration officer in the due execution of his duty or any person acting in
aid of such officer shall be guilty of an offence.

(6) Any person who employs another knowing that that other is a
person prohibited under subsection (1) of section nineteen from engaging in
his employ shall be guilty of an offence.

(7) Any person who wilfully and with intent to conceal his identity,
citizenship or country of origin-

(a) fails to comply with a lawful requirement made under

subsection (6) of section twenty-six; or (b) when required under subsection
(6) of section twenty-six to answer questions put to him, makes any
 96

representations by words, writing or conduct of a matter of fact, which

representation is false in fact; shall be guilty of an offence.

30. Any person guilty of an offence under this Act shall be liable on
conviction to imprisonment for a period of twelve months or to a fine of five
hundred kwacha, or to both such imprisonment and such fine. "

1980 ZR p45
BARON, D.C.J.

Director of Public Prosecutions argues that where a provision prohibits the

doing of an act then the breach of that prohibition is an offence even if no
penalty is provided in respect thereof unless the contrary is manifestly the
intention of the legislature. In support of this proposition he cites a slumber
of authorities; they are all to the same effect and we propose to mention only
two. In R v Price (1) the accused was indicted for a misdemeanour in
refusing to register the birth of his child pursuant to stat. 6 and 7, W. 4, Cap.
86, s. 20. The title of this Act was

"An Act for Registering Births, Deaths and Marriages in England".

The section reads:

"The father or mother of every child born in England . . . shall, within

42 days next after the day of eatery such birth, give information, upon being
requested so to do, to the said registrar, according to the best of his or her
knowledge and belief, of the several particulars hereby required to be known
and registered touching the birth of such child."

Nowhere in the statute was a breach of this provision expressed to be an

offence, nor was a penalty provided in respect of such breach. Breaches of
other provisions of the statute were specifically made offences. Lord
Denman, C.J., said:

". . . but the words of this clause are unambiguous and imperative . . .
Here is a direct and positive injunction . . . And, looking to the general
object and effect of the recent law, we cannot avoid holding that the matter
is of public concern."
 97

Lord Denman in his use of the expression "public concern" appears to have
been referring to a passage in Hawkins' Pleas of the Crown which has been
cited wish approval in succession of English cases and is unquestionably a
correct statement of the law on this subject. The passage was cited for
instance by Ashworth, J., in Rathbone v Bundock (2), a decision of the
Court of Appeal in which Lord Parker, C.J., and Fenton Atkinson, J.,
concurred, when he said at p. 261:

"Ultimately, as it seems to me, the issue can be stated quite simply,

although the answer is not easy, namely: What is meant by, or involved in,
the word 'offence' ? If the true view is that there can be no offence properly
so called unless or until provision is made for penalising it, the appellant
should succeed. On the other hand, if an offence can occur irrespective of
any provision as to penalty, the present appeal should fail. In my judgment,
the latter is the true position. The general principle was thus stated in 2
HAWKINS' PLEAS OF THE CROWN, c. 25, s. 4:

'It seems to be a good general ground that wherever a statute prohibits

a matter of public grievance to the liberties and security of the subject, or
commands a matter of public convenience, as the repairing of the common
streets of town, an offender against such statute is punishable not only at the
suit of the party aggrieved but also by way of indictment for his contempt of
the statute, unless such method of proceeding do manifestly appear to be
excluded by it.'

1980 ZR p46
BARON, D.C.J.

This principle was applied in R. v Hall. In that case, and in others in

which the decision was followed, the main issue was whether procedure by
way of indictment was manifestly excluded but the principle stated above
was not challenged and it must, in my view be taken as well established."

We stress that although in the old cases the issue was whether the procedure
by way of indictment was manifestly excluded the Court of Appeal in
Rathbone v Bundock (2) applied that approach to the question whether there
can be an offence without provision being made for penalising it.

There is no magic in the word "offence". It comes from the word "offend",
and if one contravenes the provisions of an enactment one offends against it.
 98

Of course, s. 3 of the Interpretation Act, Cap. 2, defines "offence" as "any

crime, felony, misdemeanour, contravention or other breach of, or failure to
comply with, any written law, for which a penalty is provided". But the
reference to the provision of a penalty takes the matter no further in the
present case because s. 30 of the Act provides general penalty for offences,
and only if s. 30 can be held to refer exclusively to the offences set out in s.
29 could an argument based on the failure to prescribe a penalty be
sustained. We are satisfied that s. 30 cannot be limited in its application to
the offences set out in s. 29; had this been the intention of the legislature it
would have been very easy to refer in s. 30 to an offence "under s. 29" rather
than an offence "under this Act".

The first issue in the present case is therefore whether the language in s. 19
(1) is, in the words of Lord Denman, C.J., "unambiguous and imperative", "a
direct and positive injunction", or whether the language is merely directory.
It cannot in our view be seriously argued that the language of s. 19 (1) is
other than peremptory. What consequences are intended to flow from a
breach is another question, but that the legislature intended to prescribe a
firm prohibition the breach of which would be visited by some consequence
is abundantly clear from the language, we have been unable to find any case
in which language of this kind has been held to be merely directory or
explanatory.

This being so, the case turns on whether it is manifest on a proper

construction of the Act that it was the intention of the legislature that a
breach of this provision should not be an offence. The learned Chief Justice
approached the matter from the opposite direction; he held that s. 19 (1) did
not create an offence because he saw "no good reason why the court should
be assiduous to find an offence where the legislature has not clearly so
stated"; the cases are however clear that this is not the correct approach, and
that the breach of a prohibition will be an offence unless the contrary
intention clearly appears. Mr Yousuf on behalf of the respondent submits
that such contrary intention does in fact clearly appear from a consideration
of the Act as a whole.

Mr Yousuf's argument is that s. 29 of the Act was intended to be exhaustive

of offences. He argues that had the legislature intended breaches of other
provisions to be offences it would have been very easy

1980 ZR p47
 99

BARON, D.C.J

to say so and that the failure to say so is a clear indication of the contrary
intention. He submits that there are other consequences which flow from
contraventions of provisions in the Act not referred to in s. 29 and that the
legislature must be presumed to have regarded these other consequences as
sufficient to deal with the mischief which the Act was designed to meet. To
test this argument it is necessary to analyse the provisions referred to in the
several subsections of s. 29 and also several provisions which are not
referred to in that section.

Section 29 (1) makes it an offence for a person who has been required by
notice under s. 23 to leave Zambia within a specified period wilfully to
remain in Zambia after the expiry of such period. Section 23 (1) reads:

"23. (1) Any immigration officer may or, if so directed by the

Minister in the case of a person to whom subsection (2) of section twenty-
two relates, shall by notice served in person on any prohibited immigrant
require him to leave Zambia."

This language is directory only. The section tells an immigration officer

what he may do (or if so required by the Minister, what he shall do); it does
not require the prohibited immigrant to leave Zambia. Furthermore specific
provision is made in s. 26 of consequences which flow from the failure of
the prohibited immigrant to leave Zambia in terms of such notice; section 26
(3) reads:

"(3) Any prohibited immigrant who-

(a) having been required under section twenty-three to leave

Zambia, fails to do so within the prescribed period:
(b) . . .
may without warrant be arrested, detained and deported from
Zambia by an immigration officer or police officer."

Hence, if the failure to comply with the requirements of a notice under s. 23

had not been specifically made an offence by s. 29 (1) it would for two
reasons have been impossible to hold that such failure was an offence; first,
the language of s. 23 is directory only, and second, another consequence,
 100

namely the power without warrant to arrest, detain and deport has been
specifically provided.

Section 29 (2) makes it an offence to fail to comply with the provisions of s.

9 or s. 13. In view of the rather curious form of s. 29 (2) it is necessary to set
out ss. 9 and 13 in full:

"9. (1) Every person who arrives in Zambia by air-

(a) at any prescribed airport and intends to leave the

precincts of such airport shall forthwith appear before an immigration
officer;
(b) at any place other than a prescribed airport shall
forthwith proceed to and appear before the nearest immigration officer.

(2) Every person who enters Zambia by inland waters or overland

shall forthwith proceed to and appear before the nearest immigration
officer."

1980 ZR p48
BARON, D.C.J.

"13. (1) Every person departing from Zambia, except a direct transit
through Zambia by air having not left the precincts of a prescribed airport,
shall appear before an immigration officer.
(2) The immigration officer may require such person-

(a) to produce his passport and any permit issued to him under this
Act and to surrender any such permit which is no longer valid;
(b) to make and sign such declaration as may be prescribed;
(c) in writing or otherwise to answer such questions relating to his
identity or departure as may be put to him by the immigration officer."

Section 9 contains nothing but a mandatory requirement to appear before an

immigration officer; the language is peremptory. Thus in accordance with
the principle enunciated above a breach of this section would have been an
offence without; the necessity to include it in s. 29. Section 13 however is in
a different category; sub-s. (1) is similar to s. 9 and similar comments would
apply, but sub-s. (2) contains directory provisions, and the failure to comply
with a requirement of an immigration officer made pursuant to the authority
 101

contained in that subsection would not be an offence unless specifically so

made. It is curious that ss. 9 and 13 were referred to compendiously in s. 29
(2); the suspicion is strong that what is now s. 10 was originally included in
s. 9, and that the draftsman had in mind the directory provisions contained in
s. 13 (2) and the corresponding provisions in what is now s. 10 (2). Be that
as it may, the reference to s. 9 must be held to be support for Mr Yousuf's
submissions because, as we have said, the breach of that section would, on
the Director's argument, in any event have been an offence.

Section 29 (3) makes it an offence for any person within Class C of the
Second Schedule to return to Zambia. There is no other provision in the Act
which prohibits such return, which would not therefore be an offence unless
specifically made so.

Section 29 (4) makes it an offence to fail to comply with any lawful

requirements made in accordance with the provisions of s. 7, which reads:
"7. For the purpose of discharging his functions under this Act, an
immigration officer may-

(a) without warred stop, enter and search any aircraft, train, vehicle
or vessel in Zambia,
(b) require the person in charge of any aircraft, train vehicle or
vessel arriving in Zambia to furnish a list of the names of all persons in the
aircraft, train, vehicle or vessel, as the case may be, and such other
prescribed information as it is within the power of such person to furnish."

Once again this provision is directory. It states what an immigration officer

may do but does not directly require the person in charge of the aircraft, etc.,
to furnish the information referred to. Hence the failure to

1980 ZR p49
BARON, D.C.J.

comply with a requirement of an immigration officer to furnish such

information would not have been an offence had it not been specifically so
made.

Section 29 (6) makes it an offence for any person to employ another

knowing that that other person is prohibited under s.19 (1) from engaging in
his employ. Mr Yousuf argues from this provision that whereas the
 102

legislature has chosen specifically to make a breach of s.19 (1) an offence on

the part of the employer it has specifically declined to do so in the case of
the employee. This argument is fallacious. Section 19 (1) specifically
prohibits the employee from engaging in employment save under a permit;
nowhere In the Act save in s. 29 (6) is there any corresponding prohibition
on an employer.

Section 29 (7) makes it an offence for any person wilfully and with intent to
conceal his identity, citizenship or country of origin to fail to comply with
certain requirements made under s. 26 (6) or to make any false
representation when asked any questions under that subsection.

Once again the provision in question is directory only and sets out what an
immigration officer may require that person to do; it does not directly
require that person to comply with the requirements of the immigration
officer, and a failure to comply with such requirements would not apart from
s. 29 (7) be an offence.

Thus it will be seen that, with the exception of the reference in s.29 (2) to s.
9, none of the offences created by s. 29 would have been an offence but for
its inclusion in that section.

We turn now to consider certain other provisions in the Act which are on the
one hand directory and on the other peremptory in form. Section 10 gives an
immigration officer power to examine any person appearing before him in
accordance with the provisions of s. 9 and any person whom he reasonably
suspects to be a prohibited immigrant, and in sub-s. (3) empowers him to
require that person to produce his passport, make a declaration and so on,
very much on the lines of the provisions of s. 13 (2) which we have quoted
above. Section 11 authorises an immigration officer to require any person,
not being the holder of a permit to remain in Zambia or a visiting permit
issued under s. 15, to appear before an immigration officer. The language of
these provisions is directory.

Section 14 deals with entry permits and sub-s. (3) reads:

"14. (3) The holder of an entry permit shall not for gain engage in any
occupation other than an occupation specified in such permit."
 103

This is certainly a peremptory prohibition. Section 15 deals with visiting

permits, s. 16 with study permits, s. 17 with temporary permits and s. 18
with employment permits; none of these sections contains a provision
similar to that contained in s. 14 (3).

Section 19, set out above, contains the three separate prohibitions dealt with
in the three subsections; they are in peremptory terms. If the proposition be
valid that s. 29 is exhaustive of offences then it follows that

1980 ZR p50
BARON, D.C.J.

a breach of one of the four provisions in question, i.e. s. 14 (3), s. 19 (1), s.

19 (2) and s. 19 (3), is an offence. If that be so it is difficult to see what
purpose was served by including those provisions in the Act. Save for the
one case under s. 19 (1) to which we will return in a moment, every breach
is also a breach of a condition attaching to a permit and would result in the
holder of such permit either becoming a prohibited immigrant automatically
or being liable to have his permit revoked under s. 21 of the Act. Hence
unless the legislature intended something else to flow from a breach of these
various prohibitions they serve no purpose. Mr Yousuf argued that the
legislature, by omitting these provisions from s. 29, indicated that it regarded
the consequence of deportation as sufficient. This argument assumes that
being found guilty of an offence is a more serious consequence than
deportation; but the maximum penalties prescribed in s. 30 are a fine of
K500 or imprisonment for one year both, and we can envisage many
circumstances in which a person might regard it as for more serious to be
deported. By the same token, the authorities might feel that the
circumstances of a particular breach are not so serious as to warrant
revocation of the permit and deportation, but cannot be overlooked; such a
breach would appropriately be dealt with by charging the person with an
offence.

The single case to which we have referred arises under s. 19 (1). If a person
is a visitor for a period of less than three months he does not require any
permit to remain in Zambia during that period, and theoretically he could
engage in paid employment. It could be argued that s. 19 ( 1 ) is necessary to
cover this case since for such a person to engage in paid employment is not a
contravention of any other provision in the Act and that only by virtue of the
breach of this provision does such a visitor fall within para (ii) of Class E of
 104

the Second Schedule. But this argument assumes once again that being
found guilty of an offence is a more serious consequence than deportation.

We have not overlooked that a visitor for less than three months could
possibly in theory engage in a prescribed trade, business or other occupation
or commence a course of study at an educational institution. Bearing in mind
particularly the necessity to obtain a licence to trade, etc., or a place at the
institution in question, as the case may be such situations may not be even
theoretically possible, but in practice must certainly be dismissed as fanciful.

The picture which emerges from this analysis of the Act is one which,
putting the matter at the highest in favour of the respondent, is not entirely
clear; it would have been quite clear were it not for the inclusion in s. 29 (2)
of the reference to s. The respondent's case around then have been
unarguable. On the other hand, if the reason for omitting from s. 29 any
reference to ss. 14 (3), 19 (1), 19 (2) or 19 (3) was because it was not
intended to make their breach an offence, the inclusion in the Act of these
prohibitions was, save for the isolated and somewhat improbable case
arising under s. 19 (1), unnecessary. The courts will normally be slow to
conclude that the draftsman has erred, but in the present case this conclusion
is irresistible; in one respect or the other he has made a mistake.

1980 ZR p51
BARON, D.C.J.

It is unnecessary to speculate as to which of the two mistakes the draftsman

made, or to draw from the fact that on the one construction he included
unnecessarily in s. 29 a reference to a single provision, whereas on the other
construction he included unnecessarily in the Act at least three and perhaps
four substantive prohibitions. The matter is concluded by the principle stated
in Hawkins's Pleas of the Crown and accepted in all the English cases from
that day to this, and the present case falls squarely within that principle. We
have here a prohibition expressed in unambiguous gild imperative terms and
the matter is one of "public grievance"; a breach of such a prohibition must
be held to be an offence unless the contrary intention manifestly appears.
This cannot in our judgment be said.

The appeal will be allowed and the conviction entered by the magistrate
restored.
 105

12th July, 1974

On the question of sentence Mr Yousuf submits that four months'

imprisonment with hard labour is excessive in all the circumstances. Section
30 of the Act prescribes a penalty of twelve months' imprisonment with hard
labour or a fine of K500 or both. In passing the sentence the magistrate said
only this:

"You are a first offender and entitled to leniency. This is a serious

offence."

It is a well established principle that where the legislature has prescribed a

fine as an alternative to imprisonment a first offender should not be sent to
prison without the option of a fine unless the latter punishment is in the
circumstances clearly inadequate or inappropriate. In overlooking this
principle the magistrate has erred. It is not sufficient to consider simply the
seriousness of the offence; the legislature had this consideration in mind
when it fixed the penalty.

The question then is whether in the circumstances of this case a fine would
be an adequate penalty. The statement of facts discloses that the respondent
came to Zambia originally in 1965 under a three-year employment permit; in
1968 he obtained an extension for one year and in 1969 a further extension
for one year. This second extension was due to expire in April, 1970. In
January, 1970, he charged his employment and joined the firm by which he
was thereafter continuously employed until the circumstances came to the
attention of the immigration authorities as result of a traffic accident in
which the respondent is as involved.

These facts disclose a blatant and deliberate disregard of the law. The
conclusion is inescapable that the respondent did not apply for a permit
authorising him to change his employment and for an extension of his
employment permit because he feared that his application might not be
granted. There is no possibility here that the respondent might inadvertently
have failed to apply for the necessary extensions. This case therefore
represents a serious example of this particular offence.

The first principle by which a court should be guided in considering what is

an appropriate sentence is the public interest. This offence has
 106

1980 ZR p52
BARON, D.C.J.

been created specifically for the protection of Zambian workers and it is the
duty of the court to ensure that that protection is an effective one. It would
not in our view be effective if a custodial sentence were not imposed in this
case; it would be no great deterrent if a person were to know that if he revere
unfortunate enough to be found out and convicted of this offence, he would
as a first offender be punished merely by a fine of up to a maximum of
K500. Although basically therefore in accordance with the principle we have
referred to the court should endeavour to avoid sending flat offender to
prison where an alternative exists, we are satisfied that a sentence of a fine
would be inadequate in the present circumstances and that tie public interest
demands that there be in additions a custodial sentence.

The order of the court is that the respondent will serve one month's
imprisonment with hard labour; in addition he will pay a fine of K500 or in
default of payment will serve two months' simple imprisonment. The period
from the 26th March to the 16th April, during which the respondent has been
in custody in connection with the facts giving rise to this offence, will be
taken into account.

Order accordingly
 107

CHARLIEWELL, KAKWENI CHUNGA v CITY COUNCIL OF

LUSAKA (1981) Z.R. 54 (H.C.)

HIGH COURT
SAKALA, E.L., J.
17TH SEPTEMBER, 1980
(1973/HP/928)

Flynote

Civil procedure - Rates - Levying of in areas where services not provided -

Whether legal.
Civil Procedure - Rates - Meaning of.

Headnote

The plaintiff's claim is for a declaration that he is not entitled to pay any
rates in respect of plot number 65 Buckley Township, Lusaka. In his oral
evidence the plaintiff testified that he purchased subdivision 65 of Farm
1751, Buckley Estate, Lusaka, in 1970. At that time of the purchase the
property was not within the city boundary of greater Lusaka. And thus he
was not paying rates. But in 1972 after the boundary was extended to cover
Buckley Estate the city of Lusaka started levying rates. The plaintiff further
testified that he has his own water supply from his borehole; has no sewage
disposal, but makes his own arrangements for this by digging pits in which
it is buried; and that they have roads in Buckley but not maintained by the
City Council but jointly maintained by the residents, and also that this
applies to the cutting of the grass during the rain season.

The learned counsel for the plaintiff submitted inter alia, that it would be
legally and morally wrong to allow the defendant to levy rates on an area to
which it does not provide services. On behalf of the defendant the learned
counsel argued that rates must not be construed as a charge for services
rendered but a tax on all property with value situated within the boundary of
a council the purpose being to raise revenue for the city stands, lights and
for the maintenance of cemeteries, libraries, things which serve the public
as a whole.
 108

The issue before the court was whether the Lusaka City Council is lawfully
entitled to levy rates in terms of the Municipal Corporations Act, Cap. 470
on subdivision 65 of farm 1751 belonging to the plaintiff.

Held:

(i) The council may, with the consent of the Minister and subject to the
provisions of the Municipal Corporations Act, from time to time
make and levy an ordinary rate upon all assessable land or upon all
assessable improvements or upon all assessable property.

(ii) Rate is a sum of money collected by the council for purposes of

services of a public nature as opposed to services to an individual.

Case referred to:

(1) Sithole v State Lotteries Board (1975) Z.R. 106.

Legislation referred to:

Municipal Corporation Act, cap. 470, ss. 18 (1), 19 (1), 30 (1)

p55

For the plaintiff: D.M. Lewanika (Esq.), Shamwana & Co.

For the defendant: C. Banda (Esq.), Lisulo & Co.
_____________________________________________
Judgment

SAKALA, J.: The plaintiff's claim is for a declaration that he is not entitled
to pay any rates in respect of plot number 65 Buckley Township, Lusaka.

The statement of claim reveals that at all material time the plaintiff was the
owner of all the property known as subdivision 65 of Farm 1751 near
Lusaka while the defendant was the council for the City of Lusaka. By half-
yearly rate demands dated 11th January, 1973, 4th April, 1973, 8th June,
1973, 1st August, 1973, 23rd November, 1973, and 28th February, 1974, the
defendant levied rates on the plaintiff's property. The plaintiff, according to
the statement of claim, contends that the defendant had no legal or moral
right to levy the rates on his property. And thus he seeks a declaration of this
court that the defendant is not entitled to demand payment of any rates in
respect of his property.
 109

The defendant in its defence admits that the plaintiff is the owner of the
property in question and levied rates on it. Paragraphs 2, 3, 4 and 5 of the
defence read as follows:

"(2) The defendant council admits the contents of paragraph 2 of the

statement of claim and adds that it was, and is, lawfully entitled to make and
levy rates on the property described in paragraph 1 of the statement of claim
in terms of sections 30 and 18 (1) of the Municipal Corporation Act, Chapter
470 of the Laws of Zambia;
(3) The defendant council denies the contents of paragraph 3 of the
statement of claim and puts the plaintiff to the strict proof thereof;
(4) The defendant council maintains that, in terms of section 18 (1) of the
Municipal Corporations Act, all land situated within the boundaries of the
City of Lusaka is assessable properties within the meaning of the Act and it
is for the plaintiff to prove that his above mentioned property which is
situated within the City of Lusaka is specifically excluded or exempted as
provided therein;
(5) The defendant council has legal right to make and levy the rates upon
the plaintiff's above mentioned property and to demands the payment of and
to recover the rates from the plaintiff."

In his oral evidence, the plaintiff testified that he purchased sub-division 65

of Farm 1751, Buckley Estate, Lusaka, in 1970. At that time of the purchase
the property was not within the city boundary of Greater Lusaka. And thus
he was not paying rates. But in 1972 after the boundary was extended to
cover Buckley Estate the City of Lusaka started asking for rates. As
residents of Buckley, on receipt of the notices for rates, they made
representations through an association which was formed within the area to
the Mayor through the Town Clerk. The

p56

representations were subsequently forwarded to the Ministry of Local

Government and Housing. Consequently each resident of Buckley including
those of Makeni received letters in which the Ministry of Local Government
and Housing approved 50 per cent remission in rates. According to the
plaintiff this was done because they were not given services. But after these
letters the City Council continued to make half-yearly demands of rates
without any omission at all. The witness stated that even after 1973 when
 110

they received the letter for 50 per cent remission for rates, they still got no
services from the City Council. The plaintiff testified that he has his own
water supply from his borehole. He has no sewage disposal; but makes his
own arrangement for this by digging pits in which it is buried. He said they
have roads in Buckley but not maintained by the City Council but jointly
maintained by the residents. This applies to the cutting of the grass during
the rainy season.

The plaintiff told the court that he feels he should not pay rates because he
derives no benefit from the City Council. This he said applies equally to the
other residents.

In cross-examination, the plaintiff told the court that he was not informed
when Buckley Estates became part of Greater City of Lusaka. He also said
he did not know that rates are payable to the Council irrespective of whether
services are rendered or not. He agreed that residents of Buckley use a tarred
road branching off from the Great North Road going to Hill Top Hotel. But
he said nobody fills the pot-holes on that road. He explained that his
property has a value. He has a house, a borehole, a chicken run and fruit
trees. He would not sell his property at less than K43,000.00. The plaintiff
also stated that his property has not been exempted from paying rates to the
Council.

In re-examination the plaintiff testified that the road that branches off from
Great North Road leading to Hill Top was built before the Federation. It was
in existence before they were asked to pay rates.

DW1, the Chief Valuation Officer with Lusaka City Council, testified that
he passed the final examination of the Royal Institute of Chartered
Surveyors. He is a Fellow of Rating and Valuation Association of London
and a member of the Surveyors Institute of Zambia. He is responsible for the
preparation of valuation rolls of all types of property situated within the City
Limits of Lusaka. He explained that the jurisdiction of Lusaka City Council
extends up to Zanimuone Hotel on the Great North Road close to Chilanga
Cement Factory on the South. On the Great East Road it extends to the turn-
off to the International Airport while on the west it is a point on Mumbwa
Road, three kilometres from the town centre. The Chief Valuation Officer
also testified that subdivision 65 of Farm 1751, Buckley Estates, is within
the bounds of Lusaka City Council. He said this particular farm became part
of Lusaka in July, 1970, when the Lusaka City boundary was extended.
 111

Following upon the extension a survey of the properties in 1971 was carried
out by the City Council which included subdivision 65 of Farm 1751, which
was

p57

also valued and included in the valuation roll. The City Council has since
levied rates on all the properties in the extended area. The Chief Valuation
Officer explained that rates are a tax levied on the owners of property
situated within any local authority. The basis of levying the rates is the value
of property on the assumption it is sold. With regards to Lusaka City
Council he said it can levy rates on all assessable property within its area.
The Chief Valuation Officer also explained that rates, a form of tax, are not
based on services or a charge for services rendered. He said that the City
Council is empowered by the Municipal Corporations Act, Cap. 470 of the
Laws of Zambia to levy rates on all assessable property within its area. He
said the property in dispute was valued in 1977 at about K35,000.00. This
would be the figure the Council would take into account in levying rates on
the property in question.

The Chief Valuation Officer also testified that the Council water and sewage
charges are separate charges from rates. With regards to the property in
question the witness informed the court that the amount of K85.40 by way of
rates has not yet been paid.

In cross-examination the Chief Valuation Officer told the court that prior to
1970 the plaintiff was not paying rates. He agreed that because the property
was not within the City boundary prior to 1970 no services were rendered by
the Council to the area. But said that after the area came in the city
boundary, services were rendered by the Council which included the grading
of roads. The Chief Valuation Officer also told the court in cross-
examination that the money raised for rates is used to improve the city on
providing services to the people, in maintaining cemeteries, libraries and
running the general affairs of the Council and on capital expenditure. He
said the money is not raised to provide services only but for other amenities
like good roads, bus stops, bus stands, and lights and other things which will
serve the public as a whole. He stated that he was aware that there are no
water services provided in Buckley Township. But he was not aware that
until 29th April, this year the roads were not being graded in Buckley
 112

Township. He was not aware that after the hearing of the case on 27th April,
this year graders were seen on the roads the following day in Buckley.

The foregoing was the evidence in these proceedings. At the end of the
defence evidence both learned counsel filed written submissions with the
court. From the pleadings and the evidence the material and relevant facts
are in my view not in dispute. These are-the plaintiff is the owner of
property described as subdivision 65 of Farm 1751 Buckley Estates, Lusaka.
He occupies this property and it has a value. He purchased it sometime in
1970. Before 1st July, 1970, the plaintiff did not pay any rates in respect of
the property and the City Council did not demand any rates from him in
respect of the same. It is common cause that at the time the plaintiff paid no
rates before 1st July, 1970. Although the evidence is not very clear as to the
criterion used by Lusaka City Council in extending its boundaries, the point
appears not to be in dispute that

p58

sometime in July, 1970, Lusaka. City Council extended its boundaries

covering the farm in issue. Following this extension the Council carried out
a survey of the properties in 1971. The survey included subdivision 65 of
Farm 1751.

On the evidence of the plaintiff which also appears not to be in dispute, I am

satisfied that the plaintiff provides his own water and sewage disposal. It is
conceded on behalf of the plaintiff that the defendant is under a mandatory
obligation to value all assessable property situate within its boundaries. The
plaintiff's contention is that the levying of rates is discretionary and the
defendant must exercise the discretion properly. It was thus submitted on
behalf of the plaintiff that it could be legally and morally wrong to allow the
defendant to levy rates on an area to which it does not provide any services.
On this basis the plaintiff is asking this court to declare that the defendant is
not entitled to demand payment of rates in respect of the said property.

The argument on behalf of the defendant is that rates are not a charge for
services rendered but a tax on all property with value situate within a
boundary of any council for purposes of raising revenue for the council. It
was pointed out that the basis for levying the rates is the Municipal
Corporations Act, Cap. 470 of the Laws of Zambia. It was submitted on
behalf of the defendant that in terms of sections 18 (1) and 30 of Cap. 470
 113

the defendant was and is lawfully entitled to make and levy rates on the
plaintiff's property.

The remedy of declaration the plaintiff is seeking in this action is

discretionary. This court has power to give a declaratory judgment
particularly in cases where there is no adequate alternative remedy. The
emphasis appears to be that the discretion must be exercised "with care and
caution," and "judicially". (Sithole v The State Lotteries Board (1)). I have
considered the question of whether this is a fit and proper case in which to
entertain a request for a declaration. In the light of the practical value of the
declaration being sought and particularly that the issue raised is of public
interest and importance, I take the view that I must deal with the matter on
its merit.

The question for the determination of the court is this: Is the Lusaka City
Council lawfully entitled to levy rates in terms of the Municipal
Corporations Act, Cap. 470 on subdivision 65 of Farm 1751 belonging to the
plaintiff? It must be observed that I have deliberately avoided the word
"morally" because I do not consider that this is a proper forum to discuss the
morality of the acts of the Lusaka City Council as opposed to the legality of
those acts.

The objects of the Municipal Corporations Act, Cap. 470 as set out in the
preamble read as follows:

"An Act to define certain functions of municipal councils relating to

the control and care of streets and lands within municipalities, to make
provision for the valuation of assessable property and the levying of rates;
and to provide for matters incidental to or connected with the foregoing."

p59

The Act defines functions of municipal councils relating to the control and
care of streets and lands within municipalities. In addition it makes provision
for the valuation of assessable property and the levying of rates. Section 18
(1) defines assessable property as follows:

"18 (1) All land within the Municipality, together with all
improvements situated thereon, shall be assessable property within the
meaning of this Act, save such property as the Minister may prescribe."
 114

I have already observed that after 1st July, 1970, the property on Plot 65 of
Farm 1751 came within the Municipality of the City of Lusaka. In terms of
section 18 (1) that land together with all the improvements situated thereon
became assessable property. The plaintiff concedes in his evidence that his
property is not exempted. Thus by law the City Council has to cause a
valuation of Plot 65 of Farm 1751 to be entered on the roll (section 19 (1)).
For the purpose of this action, I find it unnecessary to deal with the
provisions relating to the method of valuation of assessable property.
Section 30 (1) which empowers Council to levy rates reads as follows:

"30 (1) The Council may, with the consent of the Minister and subject
to the provisions of this Act, from time to time make and levy an ordinary
rate upon all assessable land or upon all assessable improvements or upon all
assessable property."

The argument by Mr Lewanika on behalf of the plaintiff is that the levying

of rates is discretionary and the discretion must be exercised properly. There
is force in this argument and I certainly agree with it. Mr Lewanika goes
further by submitting that it would be legally and morally wrong to allow the
defendant to levy rates on an area to which it does not provide services. On
behalf of the defendant, Mr Banda has argued that rates must not be
construed as a charge for services rendered but a tax on all property with
value situate within the boundary of a council the purpose being to raise
revenue for the city which according to DW1 is used to improve amenities
like good roads, bus stops and stands, lights and for the maintenance of
cemeteries, libraries, things which again according to DW1 serve the public
as a whole.

It would appear to me that at the end of the day the determination of this
case will depend on the definition to be placed on the word rate. I must
admit that after a very careful perusal of Cap. 470 I have been unable to find
the word rate defined in the Act.

This court is greatly indebted to counsel for the defendant for the authorities
on the point. After a perusal of the various authorities I have found that the
clearest definition of the word rate is contained in Halsbury's laws of
England, 3rd ed. Vol. 32, para. 11, para. 10 under the heading Meaning and
Nature of rate which reads:
 115

"10. The expression "rate" means a rate the proceeds of which are
applicable to local purposes of a public nature and which is leviable on the
basis of an assessment in respect of the yearly

p60

value of property, it includes any sum which, though obtained in the

first instance by a precept, certificate, or other instrument requiring payment
from some authority or officer, is or can be ultimately raised out of a rate,
but does not include any drainage, church, commons, water, or garden rate."

The definition seems to me to conform with the evidence of the Chief

Valuation Officer for the defendant. My understanding of this definition is
that rate is a sum of money collected by the Council for purposes of services
of a public nature as opposed to services to an individual. As correctly
submitted by Mr Banda, therefore, rates are a tax on all property with value
situate within the boundary of the Council for purposes of raising revenue
for the maintenance of facilities offered to all the residents. The concept may
perhaps sound "morally wrong" to a rate payer who perhaps provides his
own water and electricity services etc. But rates are not charged on the basis
of these services.

While appreciating the plaintiffs sentiments in this matter, I cannot say that
the City Council exercised its discretion improperly particularly considering
that a 50 per cent remission was made on the early rate demands. In the
result I have come to the conclusion that the defendant are legally and
perhaps morally entitled to levy rates on all assessable proper within its
boundary. In coming to this conclusion I have no doubt that the City Council
of Lusaka in arriving at the rateable value of property in different areas on
which the rates are based takes into account the non-availability or lack of
facilities of a public nature in different areas.

In the exercise of my discretion therefore I refuse to grant the declaration

sought. The action is accordingly dismissed. The matter raised in this action
is such that in the interest of justice, I make no order as to costs.

Action dismissed
 116

THE ATTORNEY GENERAL AND STEVEN LUGURU

SUPREME COURT
NGULUBE, CJ. CHAILA, CHIBESAKUNDA, JJS
1ST FEBRUARY, 2001 AND 18TH DECEMBER, 2001
(SCZ No. 20/2001)

Flynote

Land law - Sale of govt. pool houses

Headnote

The Respondent raised a complaint against the Attorney-General and

Committee on the sale of govt. pool houses. The Respondent worked in a
civil service of the govt. of the republic of Zambia from January, 1979 to
February, 1998. During that time, the respondent acquired an entry permit.
During the period 1979 to 1998, the respondent occupied the house situated
at Plot No. 1222-1, Katopola Road, Rhodes Park, Lusaka. In 1996, the
Govt. of the Republic of Zambia issued a govt. circular on the
implementation of the civil service ownership shceme. The circular set out
some guidelines ont he scheme. The respondent who wa sa Tanzanian
applied to purchase the house where he was residing. The respondent was
told that the sale was restricted to civil servants. Later when the respondent
proved to the Housing Committee that he was a civil servant, he was
advised that he could not buy the house because he was not a Zambian. He
then, after further advice fromt he Permanent Human Rights Commission,
took the matter to the Lands Tribunal which gave the decision in his favour.
The Attorney-General appealed.

Held:

(i) Specific performance cannot be ordered against the state. (State

Proceedings Act s.16 followed).

(ii) The injuction of the Lands Tribunal is restricted to Lands disputes.

(iii) The govt. circular was meant to empower Zambians.

Appal allowed.
 117

For the Appellant: Mr. J. Jalasi, State Advocate

For the Respondent: Mr. R.H. Nkhetani of Messers. R.H. Khetani &
Company

Judgment

Chibesakunda, JS, delivered the judgment of the court.

This judgment was written by our late brother Chaila who died before it
could be delivered. The remaining members of the panel agreed with it and
have now adopted it as their own majority decision.

The Attorney-General, hereinafter referred to as the Appellant, has

appealed against the decision of the Lands Tribunal given in favour of
Steven Luguru, hereinafter referred to as the Respondent. The Lands
Tribunal entertained an application by the respondent. The application was
by way of a complaint by the respondent, a Tanzanian national, against the
rejection by the committee of the appellant on the sale of government
houses. The Lands Tribunal heard the complaint and gave an order that the
housing committee of the appellants should sell the house, which the
respondent had occupied while working in the Civil Service.

Briefly, the facts of the case were that the respondent raised a complaint
against the Attorney-General and Committee on the sale of government pool
houses. The respondent worked in the Civil Service of the Government of
the Republic of Zambia from January 1979 to February 1998. During that
time the respondent acquired an entry permit. During the period from 1979
to 1998, the respondent occupied the house situated at plot No. 1222-1
Katopola Road, Rhodes Park, Lusaka. In 1996, the Government of the
Republic of Zambia issued a Cabinet Circular dated 13th September, 1996
on the implementation of the Civil Service Home Ownership Scheme. The
circular set out some guidelines on the scheme. The respondent applied to
purchase the house where he was residing. The Respondent was told that the
sale was restricted to Civil Servants. Later when the Respondent proved to
the Housing Committee that he was a Civil Servant, he was advised that he
could not buy the house because he was not a Zambian. He then, after
 118

further advice from the Permanent Human Rights Commission, took the
matter to the Lands Tribunal, which gave the decision in his favour.

The appellant has filed and relied upon a number of grounds. The first
ground is that the tribunal misdirected itself in principle when it failed to
recognize and address its attention to the declaration made by the
Government in the preamble of the handbook on the Civil Service Home
Ownership Scheme, which provides that the intention of the Government is
to empower Zambian to own real property through the Scheme.

The appellant has abandoned ground two in the heads. The next ground
provides that the tribunal erred in both law and fact when it made an order
with the effect of specific performance against the appellants and issued an
ultimatum of fourteen days in respect thereof.

The third ground which is ground four in the heads of argument provides
that this honourable court should determine for the guidance of the members
of tribunal litigants and legal practitioners generally whether or not the
tribunal has jurisdiction to determine matters or disputes that are essentially
master and servant, employment or labour dispute albeit that the same may
involve issues relating to land.

Mr Jalasi for the appellant in arguing the three grounds has informed the
Court that he would rely heavily on his written heads submitted on 25th
January, 2001. He drew our attention to the preamble of the handbook
prepared by the Cabinet Office in September, 1996. The preamble reads:

“Introduction

In the spirit of empowering Zambians to acquire their own houses,

Government has decided to sell some of its pool houses to sitting tenants
who are civil servants. This section contains guidelines for the sale of
government pool houses. These guidelines include information on the
categories of houses, eligibility/ineligibility criteria of the sitting tenants,
administrative procedures, modes of payment and supervision of the sale.
The guidelines are subject to review as and when the need arises.

Further information regarding the sale of government pool houses may be

obtained from the Permanent Secretary(Administration), Cabinet Office,
who is chairman of the Ad Hoc Supervisory and Monitoring Committee.”
 119

Mr Jalasi argued that the tribunal did not consider this preamble despite
having availed them the handbook. The learned counsel submitted that the
preamble was cardinal in interpreting the conditions and he relied on the
cases, which have been discussed in his written heads of argument. In his
written heads of argument, on the first ground, Mr. Jalasi has strongly
argued that it would be seen from the preamble that the intention of the
government at all times was to empower Zambian to own real property and
not to include foreigners. He has relied, to support his argument, on the case
of The Attorney-General Vs H.R.H. Prince Ernest Augustus of Honover
(1975) A.C. 436 where Lord Mormand said:

“When there is a preamble it is generally in its recitals that the mischief

to be remedied and the scope of the Act are described. It is therefore
permissible to have recourse to it as an aid to constructing the enacting
provision.”

Mr. Jalasi argued that from that authority, the preamble was key when it
came to interpretation of any grey areas that may be contained in the main
body of document. He drew attention again to the case of R.V. Batemom
(1858) 27 L.J.M.C 95 which is reported in the MAXWELL ON
INTERPRETATION OF STATUES, 12 edition. He drew our attention
again to the case of Pratt Vs Cook, Son and Co. (St. Paul’s) Ltd. (1940) 437
at page 448, where Lord Russel of Killowen said:

“ For myself I feel at the outset by the fact that the Act, by its title
and preamble, declares that its object is to effect something which it says is
necessary, namely, to prohibit the payment in certain trades of wages in
goods or otherwise than in current coin of the realm; and it being the avowed
object of the Act to effect the necessary reform, it would in my opinion
require words plain, and incapable of any other construction, to justify the
view that by Section 23 the very evil which the Act says it is necessary to
prohibit is permitted to continue even to a comparatively limited extent.”

Mr. Jalasi maintained that the tribunal below should have paid attention to
these authorities when it was constructing the provisions of Home
Ownership circular and that the tribunal should have paid more attention to
the preamble, which made it clear that the intent of the sale of government
pool houses was meant for the spirit of empowering Zambians. The learned
counsel further drew our attention to Council guidelines on the sale of
 120

council houses and the University of Zambia guidelines. The counsel that
these guidelines excluded non-Zambians from eligibility to purchase.

In reply to Mr. Jalasi’s argument on the first ground, Mr. Nkhetani for the
respondent urged the court not to resort to the preamble unless there was an
ambiguity. The counsel argued that there were two circulars issued. There
was one filed by the appellant and there was also another circular No. 12 of
1996. The circulars qualified as to who should buy the houses. The two
circulars, he argued, had no ambiguity at all. He drew our attention to the
case of Attorney-General and the Movement for Multiparty Democracy Vs
Lewanika and 4 others, 1993/1994 ZLR at page 164. We would like to
observe that Mr. Khetani had not filed written heads of argument. We
however allowed him to argue the case without them.

As regards the second ground, the learned counsel for the appellant Mr.
Jalasi argued that the provisions of the State Proceeding Act Cap. 71 Section
16(1) deals with reliefs available against the State. Mr. Jalasi drew our
attention to the provisions of sub-section (1) which reads:

“(1) Where in any proceedings against the State such relief is

sought as might in proceedings between subjects be granted by way of
injunction or specific performance the court shall not........ make an order for
specific performance, but may in lieu therefore make an order declaratory of
the rights of the parties.”

Mr. Jalasi has maintained that the orders contained in the judgment of the
Lands Tribunal ordering the State to issue an offer to the respondent and
complete the transaction amounted to an order of specific performance
against the State, which is contrary to the provisions of the State
Proceedings Act.

In reply to Mr. Jalasi’s argument on this ground, Mr. Nkhetani conceded

that the tribunal may have gone to far in setting the period in which to
complete the transactions, but according to him the spirit was that the
government, should offer the houses within the stated period.

On the final ground, the counsel for the appellant requested the court for
guidance on the jurisdiction of the Lands Tribunal. The counsel submitted
that the case before the Supreme Court was principally between the
Government as an employer of the respondent and the respondent as an
 121

employee. The dispute arose out of the conditions of service. The

appellant’s counsel argued that the Lands Tribunal jurisdiction to determine
employer-employee matters. He drew our attention to Section 22 of the
Lands Act Cap. 184 of the Laws of Zambia, which reads:

(a) Inquire into and make awards and decisions in any dispute relating to
land under this Act.

(b) To inquire into and make awards and decisions to any dispute of
compensation to be paid under this Act

(c) Generally to inquire and adjudicate upon any matter affecting the land
rights and obligations under this Act, of any person or the Government; and

(d) To perform such acts and carry out such duties as may be prescribed
under this Act or any other written law.

In the counsel’s submission, the tribunal did not have jurisdiction to deal
with matters that are related to land which constitute of service and is
therefore in the realm of the employment law.

We are grateful to the for the parties for their learned submissions and the
authorities. We have read some and we have taken them into consideration
in our judgment. The second ground, talks about the specific performance,
which the tribunal granted to the respondent. Section 16 of the State
Proceedings Act, which has been drawn to our attention, is very clear on the
subject. The Section talks of declaratory orders. The tribunal, however,
went beyond what is provided for in the State Proceedings Act. The tribunal
granted specific performance and ordered the Housing Committee to offer
the house in question within 14 days from the date of the judgment. The law
does not support that order. The learned counsel for the appellant was on
firm ground when he maintained that the order was contrary to the State
Proceedings Act. The respondent advocate on this ground offered very
weak argument and he in fact conceded that the order was not properly
worded. The specific performance ordered by the tribunal is set-aside on the
ground that it wad granted contrary to the provisions of the State
Proceedings Act.

Ground four deals with the jurisdiction of the Lands Tribunal. We have
already set out relevant section of the Act. The State had argued that the
 122

dispute of the matter was out of conditions of service and that the Lands
Tribunal did not have jurisdiction to entertain such a complaint. The
Supreme Court in the case of Kawana Mwangela and Ronald Bwale
Nsokoshi and Ndola City Council, Appeal No. 184 of 1999 took the
opportunity of discussing the jurisdiction of the Lands Tribunal. The court
made a comment on the jurisdiction. The Supreme Court quoted and
considered Section 22. The court said:

“In our considered opinion, a reading of Sections 15 and 22 of the

Lands Act shows quite clearly that the jurisdiction of the Lands is limited to
the settlement of ‘land disputes’ under the Act is not an alternative forum to
the High Court where parties can go to even for issuance of prerogative writs
such as mandamus. In these proceedings, the appellant was seeking to
impugn a Certificate of Title issued to the 1st respondent and under the
Lands and Deeds Registry Act, Cap. 185 of the Laws, only the High Court
has jurisdiction to entertain such proceedings.”

In the recent case of Adetayo Odayeni, the Attorney-General, the

Commissioner of Lands and Atlantic Investments Limited vs the
Commissioner of Lands vs SCZ Appeal No. 130 of 2000 the question of
jurisdiction of the Lands Tribunal cropped up again. We considered SCZ
Judgment No. 29 of 2000. We sadi:

“Our short answer to the submissions is that the Lands Tribunal has no
jurisdiction to order cancellation of Certificate of Title in land matters. In
terms of the Lands and Deeds Registry Act Cap 185, the jurisdiction to order
cancellation of Certificate of Title Deeds lies with the High Court and not
the Lands Tribunal. The Lands Tribunal can only Recommend cancellation.
This is what in effect we said in Mwangela V Nsokoshi and Ndola City
Council (1). Although the Lands Tribunal was Correct in doing substantial
justice, their power is limited to recommending to the Commissioner of
Lands as to what to do with a Certificate of Title Deeds in issue and not to
order cancellation of the same.”

In the present case, the evidence shows that the Government created a
condition of service of offering for sale some government pool houses to the
civil servants who are citizens of Zambia. The evidence shows that the
dispute between the Government or the employer and the employee was not
about the land, but whether or not the respondent was qualified to be offered
to buy the house, which he was occupying as a civil servant.
 123

In the present case, the point has taken up. The evidence shows that the
dispute between the Government o the employer and the employee was not
about the land, but whether or not the respondent was qualified to be offered
to buy the house, which he was occupying as a civil servant.

In the present case, the point has been taken up. The evidence shows that
the Government created a condition of service to sell some government pool
houses to the civil servants. The evidence shows that the dispute between
the Government or the employer and the employee was not about the land,
but whether or not the respondent was qualified to be offered to buy the
house, which he was occupying as a civil servant.

We have seriously considered this issue and we are in firm agreement with
the learned counsel for the appellant that the tribunal did not have
jurisdiction in this matter.

We now turn to the first ground. Mr Jalasi has drawn our attention and
quoted in extensio the provisions of the Handbook of September 1996. He
has heavily relied on the authorities which we have already referred to. The
preamble begins with the words “In the spirit of empowering Zambians to
acquire their own houses, the Government has decided to sell some of its
pool houses to sitting tenants who are civil servants.” In its judgment, the
tribunal after considering provisions of the handbook concluded that the
respondent was eligible to purchase the house for the following reasons:

1. The appellant was a civil servant who had retired in 1997 but has not
been paid his terminal benefits and was a legal sitting tenant in accordance
with Clause 2.1(b) of the Handbook of the Scheme;

2. The appellant was a civil servant who was qualified to own land in
Zambia under the provisions of Section 3(3) of the Lands Act, Cap. 29 of
1995 in accordance with clause 2.1(e) of the Handbook on the Civil Service
Home Ownership Scheme.

The State argued that the Lands Tribunal fell in error when it failed or
ignored to consider the preamble, which was cardinal to the Home
Ownership Scheme. The learned counsel for the State drew our attention to
the Government circular by the Ministry of Local Government and Housing
and the University of Zambia guidelines on the sale of houses. We had the
 124

occasion of considering the circular of sale of Council houses in the case of

Lusaka City Council, National Airports Corporation Limited and Grace
Mwamba and others, SC Appeal No. 63 of 1998. The Ministry has been
kind to provide to us a copy of the circular No. 2 of 1996 issued by the
Ministry of Local Government and Housing. In paragraph (e) of the
circular, the Government provided the following guidelines:

“Under this policy, only individual Zambian tenants/occupiers are eligible

to purchase the houses they occupy:

(i) Houses on block allocation to institutions such as Government/Private

firms, parastatals etc. shall be offered to actual individual occupiers to
purchase within the prescribed 18 months. Provided that such occupiers
shall be expected to declare their intentions to purchase the houses within 30
days from the date of offer.

(ii) Any Zambian occupier who fails to declare his/her intention to

purchase the house within the prescribed period of 30 days from the date of
offer shall continue paying rent. However, non-Zambian with existing
tenancy agreements will continue occupying the houses provided they pay
commercial rent.”

We have also been accorded with a copy of the University of Zambia Home
Ownership Scheme. The Introduction Clause provides:

“In line with Government policy of empowering Zambians to acquire

their own houses, University of Zambia has decided to sell some of its pool
houses to sitting tenants. This section contains guidelines include
information on the categories of house, eligibility/ineligibility criteria of
sitting tenants, administrative procedures, modes of payment and
supervision of sale. The guidelines are subject to review as and when the
need arises.

Further information regarding the sale of University of Zambia Pool

Houses may be obtained from the Registrar, University of Zambia.

Clause 2 deals with ELIGIBILITY/INELIGIBILITY

Clause 2.1 ELIGIBILITY

 125

In the process of identifying University of Zambia workers who are

bona fide sitting tenants, the following criteria shall be used:

(c) a confirmed Zambian national who is in service and is a legal tenant;

(d) staff on permanent and pensionable terms of service;

(e) a worker who retired or was retrenched but was not paid terminal
benefits and was a legal tenant;

(f) a spouse or children of a worker who died but was not paid terminal
benefits and was a legal tenant;

(g) a worker means any University of Zambia employee regardless of

marital status; and

(h) the staff member shall only benefit from the scheme once;

(i) after accepting the offer to buy a university house, a serving worker shall
be bonded to the institution for a minimum of;

(j) five years except those retiring within the above stated period.

2.2 INELIGIBILITY

The following categories of University of Zambia workers shall not be

eligible to purchase University of Zambia pool houses:

(a) a University of Zambia worker who retired, was retrenched or died and
was paid terminal/death benefits;

(b) all staff on contract;

(c) all non Zambians and

(d) (i) a worker who is a sitting tenant and benefits through the University of
Zambia from the sale of council houses.

(ii) a worker who has previously benefited from a University house

(building) loan. Provided that in cases where the loan obtained at the earlier
 126

time does not amount to the sum stated in regulation 3 (three) of Section C, a
worker may apply for the difference to enable him/her complete the house.”

We have carefully considered these circulars, i.e. the Local Government

and the University of Zambia. These circulars leave no doubt what the
Government’s intentions were. The two circulars clearly spelt out the
Government policy and its intention. The intention was clearly spelt out. It
was a Government condition of service to sell some of the houses mainly to
the Zambians only. It is interesting to note that the Cabinet circular
disqualified a civil servant who was a sitting tenant and had benefited from
the sale of Council houses to buy a Council house, a civil servant had to be a
Zambian. The tribunal did not consider the meaning of the preamble. The
tribunal ignored the question of spirit of empowering Zambians to acquire
their houses. The tribunal thought that so long as you are a civil servant and
a sitting tenant and so long as you qualify under Section 3 of the Lands Act,
you are home and dry. On strict interpretation of the Cabinet circular and
interpretation of the Local Government and Housing and the University of
Zambia circulars on the sale of houses, the intention of the Cabinet becomes
very clear. The intention was to empower Zambians who were sitting
tenants to purchase pool houses. The tribunal misdirected itself and erred in
ignoring the preamble. It was the Government’s intention to make it a
condition of service to offer pool hoses to the Zambian civil servants who
were sitting tenants. In this case the respondent was a Tanzanian national
who had been in the service for a long time. He did not qualify to purchase
the Government house, which he was occupying under the scheme. The
appeal must succeed on this ground.

For the reasons we have given in our judgment, this appeal is allowed.
The orders given by the tribunal are set aside. This case involves the sale of
pool houses to the employee by the employer. The tribunal spent a great
deal of time in consideration of Section 3 of the Lands Act. From our
interpretation of the Cabinet circular the Government introduced a condition
of service to sell some of the pool houses to the Civil Servants who were
Zambians. The policy was not to sell the houses to any Civil Servant who
qualified under Section 3 of the Lands Act. Section 3 of the Lands Act is a
general provision which empowers any civil servant to purchase land under
certain conditions. The Government Circular empowered Zambian Civil
Servants to purchase Government Pool houses. We consider that the
reference to Section 3 of the Lands Act in the Circular was intended to cover
those non-Zambian Civil Servants who were established residents and who
 127

had complied with that Section. There was no evidence here that the
respondent had obtained the relevant Presidential consent under Section 3.
For avoidance of any doubt the circular was to empower the Zambian Civil
Servants to purchase some government pool houses. Each party shall meet
its own costs.
 128

N B MBAZIMA AND OTHERS JOINT LIQUIDATORS OF ZIMCO

LIMITED (IN LIQUIDATION) AND REUBEN VERA

SUPRME COURT
SAKALA Ag. DCJ, CHAILA AND CHIBESAKUNDA,JJS
21ST SEPREMBER, 2000 AND 23RD FEBRUARY, 2001
(SCZ No. 6 OF 2001)

Flynote

Industrial Relations Court – Jurisdiction

Headnote

This appeal was against a decision by the Industrial Relations Court.

1. Declaring that as a sitting tenant/occupant of the flat in issue, he was

entitled of the first option to purchase it;

2. Declaring that the 2nd respondent urges the 1st respondent to sell the
property in issue to him; and

3. Damages for psychological and mental torture occasioned on him by

the said conduct of the liquidators.

The learned counsel have advanced a number of arguments before this

court. We will not deal with these arguments as we hold the view that the
important point is one of jurisdiction of the IRC. The law allows only the
high court to entertain issues relating to impugning of certificate of land.
We wish to state that in any matter where there is uncertainty as to whether
the issues to be decided are of a conveyancing nature or labour disputes, it
is advisable that the parties proceed before the High Court which court
would deal with these issues at the same time.

Held:

(i) The IRC lacked jurisdiction in conveyancing matters. The appeal

was successful and the order made by the IRC was set aside.
 129

Legislation referred to:

The Industrial and Labour Relations Act, Section 85 (2) Cap. 269 of the
Laws of Zambia.

Cases Referred to:-

Kawana Mwangela v Ronald Bwale Nsokoshi & Ndola City Council SCZ
Judgment No. 29 of 2000.

For the appellants; Mr. R, Mainza of Messrs. Makala and Company,

Lusaka.
For the Respondent : Mr. C. Muneku of Messrs Charles & charles
Associates, Lusaka.

Judgment

Chibesakunda JS delivered the judgment of the Court.

This is an appeal against a decision of the Industrial Relations court (IRC) in

a complaint by Rueben Vera (now the deceased represented by his
administrator now the respondent) against N B Corporation Limited
(ZIMCO) (Now the appellants, before us). Before the IRC, the Attorney
General, who has not appealed to this court was the second respondent .

The respondent had complained before the IRC seeking the following:-

1. A declaration that as a sitting tenant/occupant of the flat in issue, he is

entitled to the first option to purchase it;

2. A declaration that the 2nd respondent urges the 1st respondent to sell the
property in issue to him; and

3. Damages for psychological and mental torture occasioned on him by the

said conduct of the liquidators.

The IRC held in favour of the respondent and ruled that because of the
discrimination, the sale of Flat 2 of Sub-division 32 of Farm 28a to Miss
Charity Kowa was null and void. The appellants are challenging that
decision.
 130

The story before the IRC was that the complaint, now the respondent was
employed by the National Hotels Development Corporation (NHDC), a
former subsidiary of Zambia Industrial Mining Corporation Limited
(ZIMCO) in 1983. In 19993 he was transferred to one of ZIMCO’s
department known as International Catering Services (ICS) as the Chief
Accountant. At the time ICS was being dissolved, the respondent occupied
Flat No. 2, Subdivision 32 of Farm No. 28 which he occupied by virtue of
his employment status. In that same year, 1993, ZIMCO issued a circular
dated 30th of June 1993 stating that ICS was one of the units transferred to
ZIMCO as a subsidiary company. It was also his evidence that when ICS
was transferred to ZIMCO he continued to enjoy the same conditions of
service which other ZIMCO employees enjoyed. In his view, therefore, as a
ZIMCO employee, he was entitled to be offered the flat in question to
purchase as part of his conditions of service. However, the flat in question
was offered to Miss Charity Kowa, another employee of ZIMCO, who
purchased it. The evidence for the appellants was that even at the time the
flat was given to the deceased, the actual tenant of the flat was not the
deceased but the National Hotels Development Corporation. And National
Hotels Development Corporation was perpetually in rental arrears and as
such did not qualify to purchase the flat in question. The appellants also
testified that the flat in question was rightly offered to Charity Kowa as an
employee of ZIMCO, therefore the Industrial Relations court misdirected
itself.

The learned counsel for the appellant before the Industrial Relations Court
challenged that court’s jurisdiction referring to section 85(2) and Section
108 (2) of the Industrial and Labour Relations Act. Cap. 269. The Industrial
Relations court rejected this challenge and held that this was a matter related
to employment and as such they had jurisdiction to deal with it.

The learned counsel have advanced a number of arguments before us. We

will not deal with these arguments as we hold the view that the important
point, which was raised at the IRC, which IRC glossed over is one of the
jurisdiction of the IRC. We are aware that Mr. Mainza did not advance this
argument before us. Be that as it may be, we will deal with it. Section 85(2)
of the Industrial and Labour Relations Act provides that;-

“The court shall have jurisdiction-

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(c) Generally to inquire into and adjudicate upon any matter affecting the
collective rights, obligations and privileges of employees, employers and
representative organisations or any matter relating to industrial relations.”

Section 108 of the Industrial and Labour Relations Act also provides that:-

“Any employee who has reasonable cause to believe that the employee’s
services have been terminated or that the employee has suffered any other
penalty or disadvantage or any prospective employee who has reasonable
cause to believe that the employee has been discriminated against, on any of
the grounds set out in subsection (1) may within thirty days of the
occurrence which gives rise to such belief lay a complaint before the court.

Quite clearly Section 85(2) and 108 of the industrial and Labour Relations
Act show that the jurisdiction of the Industrial Relations Court is limited to
settling of labour disputes falling under the Act. It is an alternative forum to
the High Court only in cases of labour disputes. The IRC has limited but
exclusive jurisdiction in such labour disputes as provided in section 85(2)
and 108 of the Industrial and Labour Relation Act, Cap. 269. In our view, in
those proceedings before the Industrial Relations Court and even the present
proceedings before us, the Respondents were and are impugning the
certificate of title issued to Miss Charity Kowa under the Industrial and
Labour Relations Act. The IRC has no jurisdiction in conveyancing
matters. Such issues can only be dealt with by the High Court. In Kawana
Mwangela v Ronald Bwale Nsokoshi and Nodla City Council (1) we
considered the jurisdiction of the Lands Tribunal. In that case, we made the
same point and held that:-

“in our considered opinion a reading of sections 15 and 22 of the Land Act
shows quite clearly that the jurisdiction of the lands Tribunal is limited to
the settlement of “land disputes” under the acts and is not an alternative
forum to the High court where parties can go to even for the issuance of
prerogative writs such as mandamus. In these proceedings the appellant
was seeking to impugn a Certificate of Title issued to the 1st respondent and
under the lands and Deeds Registry Act, Cap. 185 of the Laws only the High
Court has jurisdiction to entertain such proceedings.”

The law allows only the High Court to entertain issues relating to impugning
of certificate of land. The Industrial Relations Court has no such uncertainty
as to whether the issues to be decided are of a conveyancing nature of
 132

labour disputes, it is advisable that parties should proceed before the High
court which court would deal with all these issues at the same time. The
IRC, therefore, lacked jurisdiction in their matter. The appeal is therefore
successful. The order made by the Industrial Relations Court is set aside.
The Respondent’s administrator, if he so wishes, may start fresh proceedings
before the High Court. The cost of this appeal to follow the event, in default
of agreement to be taxed.
 133

MUKUMBUTA MUKUMBUTA, SAM MUKAMAMBA, KWELEKA

MOOTO MOOTO KANDUMBA MUNGANGA AND NKWILIMBA
CHOOBANA LUBINDA, RICHARD MBIKUSITA MUNYINDA,
ROSALYN MUKELABAI, MONGU MEAT CORPORATION LTD

SUPREME COURT
SAKALA, CJ, CHIIBESAKUNDA AND SILOMBA JJS
16TH NOVEMBER, 2002 AND 29TH MAY, 2003
SCZ No. 8 OF 2003

Flynote:

Civil Procedure – abuse of process - dublication of actions - multiplicity of

actions - consolidation of actions - advocates bearing costs for failing to
advise client deligently.

Headnote:

The appellants had began an action at Mongu against the REspondents

under cause No. 1999/HT/16. The Respondents later, also filed originating
process at Lusaka against the appellants under cause No. 1999/HP/1807
arising from the same facts and same issues as the Mongu case. In the
Mongu case, the appellants were claiming among other things an injunction
against the Respondents, several declarations and for the return of some
funds owed to the appellants.

In the Lusaka case the Respondents were also claiming among other
things an injunction against the appellants upon seeing that the Respondents
had commenced another action at Lusaka raising the same issues as in the
Mongu case, they applied to have the Lusaka case struck out. Before that
application could be heard, the Respondents also applied to court to have
the Mongu case consolidated to the Lusaka case. This application was not
granted on the ground of multiplicity. Meanwhile in addition to the two
cases mentioned above, the Respondents had commenced another parallel
case at Lusaka under cause No. 2000/HP/0220. This cause was dismissed.
There was another parallel cause No. 1999/HP/2069 which also raised the
same issues involving the same parties. That cause was settled in the
Supreme Court. All these causes involved the same parties and either side
was represented by advocates.
 134

In the Mongu and the Lusaka causes the High Court granted to the
Respondents an application to have the causes consolidated. The appellants
dissatisfied with the High Court decision, appealed to the Supreme Court
arguing among other things that the two were not proper causes for
consolidation. The issue of costs was also raised to the effect that the High
Court failed to award costs to the Appellants.

Held:

(i) That the interest of Justice in cause No. 1999/HP/1807 called for
consolidation to cause No. 1999/HT/16 as there was duplication and
multiplicity of actions in all the causes dealt with.

(ii) That on the question of costs, the advocates for the Respondents and
not their clients to bear the costs both in the High Court and
Supreme Court.

Appeal dismissed except for one ground which was allowed (Ground No.
3)

For the Appellant: Mr. S. Sachika of Lighthouse Chambers

For the Respondents: Mr. M. Chipazya with Ms. Z. Essa of Simeza Sangwa
Associates
JUDGMENT

Sakala, CJ., delivered the judgment of the court.

This is an appeal against a decision of the High Court Judge at chambers

ordering consolidation of two cases, one started in Mongu under Cause No.
1999/HT/16 and the other started in Lusaka under cause No. 1999/HP/1807.
The facts and the history of this case, represent a typical scenario of forum
shopping brought about mainly by the advocates of the respondents at the
expense of the clients. The same parties, on essentially same issues, have
sued each other in four different causes of actions. All in all, five different
High Court Judges have had dealings with these parties at one time or
another raising similar issues. A single Judge of this Court was once
 135

involved. The Supreme Court too handled the parties. The present appeal
emanated from the decision of the Deputy Registrar. The case presents a
typical example of abuse of process of the Court.

The present appeal centres on causes Nos. 1999/HT/16 and 1999/HP/1807.

The history is this:- On 8th October 1999, the appellants issued a writ of
summons against the respondents in cause No. 1999/0HT/16 at Mongu,
claiming for account of the 4th respondent to be taken, for the return of
funds and for several declarations and for an injunction against the
respondents. Subsequent to the writ an ex-parte order for an injunction was
granted on 10th 1999 to the appellants in that cause. This ex-parte order has
to-date not been heard inter partes. On 3rd November 1999, the respondents
commenced their own action against the appellants at Lusaka under cause
No. 1999/HP/1807 claiming for a declaration, injunction and damages
against the appellants. In that action, at Lusaka, the respondents were, on
4th November 1999, unsuccessful in the application, the Court advised the
respondents to enter an appearance, file a defence and counter-claim in the
Mongu action. Thus, the respondents entered appearance, filed a defence
and counter claim to the Mongu action which counter claim was their claim
in the Lusaka action in cause No. 1999/HP/1807.

Cause No. 1999/HP/1807 commenced at Lusaka became a counter-claim

in the Mongu action. On 10th October 1999, the appellants applied to strike
out cause No. 1999/HP/1807 as being an abuse of process and a duplicate
action. This application was to be heard before the Deputy Registrar. While
waiting to hear this application, the respondents applied to consolidate cause
No. 1999/HT/16 at Mongu to cause No. 1999/HP/1807 at Lusaka. This
move was taken after the respondent’s application to transfer the Mongu
cause to Lusaka was unsuccessful. The Deputy Registrar dismissed the
application for consolidation on the ground of multiplicity. Suffice it to
mention that in addition to these actions, the respondents had commenced, at
the Principal Registry a parallel cause of action under cause No.
2000/HP/0220 which was dismissed. Then there was a similar parallel
action under cause No. 1999/HP/2069 also raising same issues. This was
settled in the Supreme Court by the consent of the parties.

In the application for consolidation before the Deputy Registrar, he

pointed out that the counter-claim in the action at Mongu was the main
claim in action commenced by the respondents at Lusaka. The learned
Deputy Registrar observed that there was a danger of having conflicting
 136

decisions; this was true. He noted that had the injunction at Lusaka not been
refused, it would have been in direct conflict with the one granted at Mongu,
this was also true. The Deputy Registrar considered the issue of
consolidation. He observed that since the claim at Lusaka had already been
raised as a counter-claim in the cause at Mongu, it was unnecessary to
consolidate the two matters. The Deputy Registrar refused to consolidate
the matter and dismissed the cause at Lusaka, namely 1999/HP/1807 on the
ground of multiplicity. This refusal, meant that the only surviving action
among the parties, was 1999/HT/16 at Mongu as the respondents had not
appealed in the other matters commenced by them.

Aggrieved by the decision of the Deputy Registrar, the respondents

appealed to a High Court Judge at Chambers. In a one and half page ruling,
the learned Judge at Chambers noted that the respondents’ action was
dismissed by the learned Deputy Registrar on ground of multiplicity of
actions. Without considering the history of the application, the appellate
High Court Judge observed that he saw no irregularity in the writ issued at
Lusaka and he saw no reasons for refusing the consolidation of the matter
earlier commenced at Mongu and the subsequent matter at Lusaka.
According to the appellate Judge at Chambers, the subject matter was the
same; the parties were more or less the same except that in the matter
commenced at Lusaka, there were more parties. The learned Judge at
Chambers found that the respondents’ case was a proper case for
consolidation. He held that an application for consolidation cannot be
dismissed on ground of multiplicity of actions because consolidation is in
fact designed to avoid multiplicity of actions. The appellate learned Judge at
Chambers allowed the appeal from the decision of the Deputy Registrar. He
ordered that the two actions namely; 1999/HT/16, earlier commenced at
Mongu and 1999/HP/1807 commenced subsequently at Lusaka being
consolidated. Hence the appeal before this court.

Mr. Sachika on behalf of the appellants filed written heads of arguments

which commenced with general remarks supplemented by oral submissions
based on four grounds of appeal.

The first ground of appeal is that the learned Judge at chambers

misapprehended the facts and the history attending to the two consolidated
actions the law and procedure in holding that cause No. 1999/HP/1807
commenced later at Lusaka was a proper case for consolidation with cause
No. 1999/HT/16 commenced earlier at Mongu ignoring that the two more
 137

less parallel actions had been decided at the High Court and Supreme Court
levels involving the plaintiff and the same issues.

In his written heads of arguments, Mr. Sachika on behalf of the appellant

contended and argued on this first ground that had the learned appellate
Judge at chambers considered facts before him that formed part of the
record, he would not consolidated case No. 1999/HT/16 to cause No.
1999/HP/1807 because the appellants, who included Mongu Meat
Corporation Limited, took out a writ of summons at Mongu, under cause
No. 1999/HT/16 on 8th October, 1999. The Defence and the Counter-claim
to cause No. 1999/HT/16, which formed the basis of causes No.
1999/HP/1807 and 2000/HP/0220 had been dismissed as abused process by
the Deputy Registrar at Lusaka and also by a High Court Judge at Lusaka
and the respondents did not appeal. Mr. Sachika submitted that by ordering
the consolidation of cause No. 1999/HT/16 to 1999/HP/1807, the High
Court appellate Judge overruled a fellow High Court Judge and the decision
of the High Court without power and authority. Counsel pointed out that
another High Court Judge had made a finding and holding under cause No.
1999/HP/1807 that the cause was unnecessary but that the respondents enter
an appearance at Mongu and file their Defence and Counter-claim, which
the respondents did and thus reproducing the claim under cause
1999/HP/1807 as a counter-claim in cause No. 1999/HT/16 at Mongu. It
was submitted that in these circumstances, consolidation of the two actions
was a misdirection.

On behalf of the respondents it was contended on this first ground that the
appellate High Court Judge at chambers was on firm ground when he held
that the case at Lusaka was a proper case for consolidation with a case at
Mongu since the subject matter was the same and the parties the same except
that in one there were more parties.

We have addressed our minds to the arguments and submissions on ground

one of appeal. Both parties appear to us to be agreed on the principle
governing consolidation namely; common question of law or facts and rights
to relief arising out of the same transaction. The rationale for consolidation,
namely, saving of costs is also agreed. What is in issue here is whether the
facts raise the question of multiplicity or duplicity of actions. On behalf of
the appellants the argument is that there were here two parallel, duplicate
actions and therefore nothing to consolidate.
 138

We have already observed that there was forum shopping in this case. A
cause of action had been commenced by the appellants in Mongu in which
they had in fact obtained an expert order for an injunction. The advocates
for the respondents, instead of reacting to that action, proceeded to
commence their own action in Lusaka before a different Judge. Correctly
so, that Judge at Lusaka found that action unnecessary and advised the
respondent’s advocates to enter appearance in the cause at Mongu and file a
defence and counter-claim, which they did. But the advocates, subsequently,
decided to apply for consolidation before the Deputy Registrar. This was, in
our view, a clear case of abuse of process of court. We disapprove of it in
very strong terms.

We agree that avoidance of multiplicity of actions is the more the reasons

for ordering consolidation. In the instant case, it was however more of a
case of duplication of actions than multiplicity of actions. But because there
was also the element of multiplicity in that there were same parties, common
questions of law and facts and rights to relief arising out of the same
transactions, the interests of justice in our view demand that cause No.
1999/HT/16 at Mongu as all the parties seem to be residents at Mongu. We
accordingly order that cause No. 1999/HP/1807 be consolidated to cause No.
1999/HT/16. To save on costs, as it appears that all the parties are residents
of Mongu, we order that the consolidated cause be heard at Mongu. In
essence, ground one of this appeal fails.

This conclusion essentially resolves grounds two and three that the
appellate Judge misapprehended the facts and misdirected himself on the
holding of the Deputy Registrar; and that the appellate Judge at chambers
took a wrong or incorrect view of the proceedings before the Deputy
Registrar.

The gist of the appellants’ arguments on ground one is that cause No.
1999/HT/16 and cause No. 1999/HP/1807 stand as duplicate of each other
and that disposal of cause No. 1999/HT/16 alone, disposes of cause No.
1999/HP/1807. We submitted that no consolidation was possible or
necessary or desirable on the facts of the two causes. As we have already
stated, apart from the two cause exhibiting duplication, there was also
multiplicity of actions warranting consolidation. Ground two also fails.

On ground three, the gist of the argument was that the appellate Judge at
Lusaka was not called upon to check the Writ of Summons for irregularity as
 139

the irregularity was in the duplication of the same cause of action. It was
submitted that the Deputy Registrar correctly found the multiplication or
duplication of the same cause of action as a fatal irregularity and dismissed
cause No. 1999/HP/1807. For the reasons already given ground three cannot
succeed as we are satisfied that there was a basis for ordering consolidation
of the two causes namely multiplicity of actions.

The last ground is a complaint that the appellate Judge failed to award the
appellants the costs for the proceedings so far. It was argued on behalf of
the appellants that the appellate Judge at chambers should at least have
punished the respondents in costs for having deliberately started counter-
actions to duplicate the original 1999/HT/16 and for bringing the High Court
into ridicule by making three Judges give conflicting decisions on the same
subject matter.

There is force in this argument. The High Court was certainly brought into
ridicule by the forum shopping exercise brought about by the advocates for
the respondents. But in our considered view, it is not the respondents who
should be punished in costs. They are not lawyers themselves. They may
not have been following what was going on. On the other hand, their
advocates, deliberately and consciously went forum shopping resulting in
the parties twice being before this Court and before several High Court
Judges. It is the advocates of the respondents and not the respondents who
should be punished. This ground on costs therefore succeeds. The result of
the appeal is that the respondents have succeeded on three grounds while the
appellant has succeeded only on one ground.

This means the whole appeal fails. But for the reasons stated, the
advocates of the respondents are hereby condemned to pay costs to the
appellants both in the Court below and in this Court to be taxed in default of
agreement.
 140

AKASHAMBATWA MBIKUSITA LEWANIKA, HICUUNGA

EVARISTO KAMBAILA, DEAN NAMULYA MUNGOMBA,
SEBASTIAN SAIZI ZULU, JENNIFER MWABA v FREDERICK
JACOB TITUS CHILUBA (Constitutional Jurisdiction)

IN THE MATTER of an Application under Article 41(2) of the

Constitution of Zambia and IN THE MATTER of the eligibility of a
candidate in respect of Article 34(3) of the Constitution of Zambia and
IN THE MATTER of regulation 1 5 made pursuant to the Electoral
Act, 1991 and IN THE MATTER of the Presidential Election held in
Zambia 'on the 18th day of November, 1996, S.C.Z. 8/EP/3/96,
S.C.Z./SIEP/3196, S.C.Z./8/EP/4/96, S.C.Z./8/EP/4196 (1998) Z.R.49
(S.C.)

SUPREME COURT
NGULUBE,C.J., BWEUPE, D.C.J., SAKALA, CHIRWA AND
LEWANIKA, JJ.S.10TH FEBRUARY, 1997 AND 7TH
JANUARY,1998 AND ONTO 10TH NOVEMBER,1998. (S.C.Z.
JUDGMENT NO. 14 OF 1998)

Flynote

(1) Constitutional law – Presidential election – Candidate –

Qualifications – Citizenship – Constitutional requirements that
presidential candidate and parents be Zambian citizens – Successful
candidate taking office as president – Petition challenging election
alleging disqualification – Citizenship of president challenged –
Whether president satisfying citizenship requirements – Proof of
parentage – standard of proof – Northern Rhodesia (Constitution)
Order in council 1963, AI 1963/2088 – Zambia Independence Act
1964, s 2(1), Sch 2, ss 3, 16(3) – British Protectorates, Protected
States and Protected Persons Order in Council 1949, s 9 –
Constitution of Zambia Act 1991 (as amended), Sch, art 34(1), (3),
(4).

(2) Constitutional Law – Presidential election – Election petition –

Jurisdiction – Constitution vesting jurisdiction in ‘full bench of the
Supreme Court’ – Meaning of full bench – Constitution of Zambia Act
1991, Sch, art 41 (2).
 141

(3) Legal profession – Counsel – Right to appear – Requirements of

professional independence – Conflict of interest – Cabinet minister
holding practising certificate – Whether entitled to appear as counsel
on behalf of individual litigant.

(4) Constitutional law – Presidential election – Election petition –

Petition impacting on governance of nation and deployment of
constitutional power and authority – Standard of proof required.

(5) Constitutional law – Presidential election – Allegations of electoral

impropriety involving bribery and corruption, irregularities and flaws
in the electoral system – whether public philanthropic activity at
election time amounting to bribery – Whether election null and void –
Electoral Act, s (18).

Headnote

The five petitioners challenged the election on 18 November 1996 of the

respondent as President of Zambia on the ground that he was not qualified
to be a candidate for election as president and be elected because neither he
nor his parents were citizens of Zambia by birth or by decent as required by
art 34(3) of Sch 2 to the Constitution of Zambia Act 1991 as amended in
1996. They pleaded that his identity and that of his parents had never been
ascertained, contended that he was the illegitimate son of one of the
witnesses born from an illicit liaison with the mother while she was married
to a Mozambican and that he was born in the then Belgium Congo (Zaire) in
1944 when his father, the witness was an alien. They also gave evidence
touching upon the respondent’s citizenship qualifications and of the possible
nationalities of his father. There was no dispute that the respondent’s
mother ‘belonged’ to the British protectorate of Northern Rhodesia, within
the meaning of s 16(3) of the 1963 Constitution, before it became the
Independent state of Zambia on 24 October 1964, and would therefore, but
for her prior death, have become a citizen of Zambia at independence by
virtue of the 1964 Order and the 1963 Constitution. The petitioners also
alleged electoral flaws in the electoral system, and asked for the avoidance
of the election on the ground that it was rigged and not free and fair.
Certain preliminary points arose, namely (i) what would be ‘full bench of
the Supreme Court’ to hear the case as required by art 41 of the
Constitution; (ii) the propriety of Cabinet ministers who were lawyers
 142

holding practising certificates appearing as counsel for the respondent, and

(iii) the standard of proof required.

Held: Petition dismissed

(1) The respondent was already a Zambian citizen and was not
disqualified from election as president. Whichever of the several
biographies proposed to the court was adopted, before independence
the respondent had been a British protected person ‘belonging’ to
Northern Rhodesia, in terms of the Constitution of Northern
Rhodesia 1963, having been born in Northern Rhodesia or whose
parents were ordinarily resident there. In requiring a presidential
candidate to be, inter alia, a Zambian Citizen aged 35 years or
more, both of whose parents were citizens by birth or decent, art
34(3) of the Constitution of Zambia (as amended) had to be
construed as referring to those who became Zambian citizens at
independence or would, but for their prior deaths, have then become
Zambian citizens. When Zambian citizenship was created at
independence on 24 October 1964, the Zambian Independence
Order 1964 s 3, had conferred such citizenships on every British
protected person who had been born in the former Protectorate of
Northern Rhodesia or, if born outside the protectorate, whose father
became, or would but for his prior death, have become, a citizen by
birth in the protectorate. It was unnecessary to determine where the
respondents had been born, although the preponderance of
evidence from official records indicated that he had been in
Northern Rhodesia. There was no dispute that his mother had
belonged to the to Northern Rhodesia and would have become a
citizen at independence but her prior death. Since the various
accounts presented to the court of his paternal parentage were
irreconcilable, the petitioners had failed to establish to the necessary
degree of convincing clarity that the respondent’s father was an
alien; there was no basis for foisting a father upon the respondent
nor for finding against the one he had officially declared. In any
event, even the finding most favourable to the petitioners, the father
proposed for the respondent was a former British protected person
belonging to Northern Rhodesia who had become a citizen of
Zambia at independence (see pp 163–165, 170-171, post). Motala v.
A-G [1993] 1 LRC 183 considered.
 143

Per curiam. The parentage qualification for election as president introduced

into the Constitution of Zambia 1991 by the amendment in 1996 pose a
number of difficulties apparently without solution, eg whether the reference
is to legitimate or biological parentage and whether adoptive parentage is
included (see p 169, post).

(2) The requirement of a ‘full bench of the Supreme Court’, which by

art 41(2) of the Constitution of Zambia 1991 was given jurisdiction
to determine whether any provisions of the Constitution or any law
relating to the election of the President had been complied with, was
satisfied when the maximum available odd number of judges of the
court were empanelled to hear the case (see p 144, post).

(3) Although it was undesirable for Cabinet Ministers to be in active

practice at the bar it was not contrary to law for them to exercise the
right of audience and to represent a litigant. Any advocate should
decline to accept instructions when there were circumstances which
would render it difficult for him or her to maintain the requisite
professional independence or which would in some way impair or
undermine his ability to promote the best interests of the
administration of justice. Ideally an advocate should not appear as
such in his own cause as in any other situation of possible want of
independence or conflict of interest or embarrassment generally.
There was no conflict of interest in the present case. If anything,
there might have been a case of common vested interests on both
sides, having regard to the number of advocates, even on the
petitioners’ side, who were themselves senior members or leaders of
some of the political parties on whose behalf the petition was
brought (see p 144, post). Re Lord Kinross [1905] AC 468
comsidered.

(4) Parliamentary election petitions were required to be proved to a

standard higher than on a mere balance of probability and therefore
in this, where the petition had been brought under constitutional
provisions and would impact upon the governance of the nation and
deployment of constitutional power, no less a standard of proof was
required. Furthermore the issues raised were required to be
established to a fairly high degree of convincing clarity (see p 145,
post).
 144

(5) (i) As to the allegations of bribery and corruption: the

government’s established programme of selling council
houses, which was taken advantage of by giving discounts in
election year, did not amount to the corrupt practice of
bribery under reg 51 of the Electoral (General) Regulations
so as to be caught by the spirit of s 18 of the Electoral Act
and, in any event, it was doubtful whether the house sales
could have significantly affected the election result in a
nationwide constituency; although treating was established, it
had not been shown that it prevented the majority of voters
from electing the candidate of their choice; the donation by
the respondent and various ministers of public funds to public
causes before, during and since the elections was not
prohibited by the regulations (see p 173, post).

(ii) As to the allegations of irregularities, although there was

some evidence of irregularities and malpractices there was no
evidence that the respondent personally or his lawful election
agent was privy to them. In any event, since the constituency
was nationwide it was not established that the proven
irregularities were such that nationally the majority of the
voters ere or might have been prevented from electing the
candidate of their choice or that such irregularities affected
the election result to any significant extent (see p 182, post)

(iii) Although the flaws in relation to the electoral system,

including the duplication of national registration cards, the
fact that some people had two or more voters’ cards,
complaints about the registers, the polling districts, the sitting
of the polling stations and the results, did not reflect well on
those managing the electoral process; they did not by their
very nature go to the general integrity of the system and did
not necessarily suggest that the electoral system had been
comprehensively massaged or predisposed in advance to grant
an unfair or any advantage or disadvantage to any candidate.
It followed that although the elections were not perfect and
some aspect of them were quite flawed they had been
conducted substantially in conformity with the law and
practice governing elections (see p 191, post).
 145

Per curiam.

(i) During election period there should be a closed season for any
activity suggestive of vote-buying, including any public and official
charitable activity involving public funds and not related to
emergencies or any life-saving or life-threatening situations (see p.
175, post).

(ii) Elections are the sole lawful constitutional and legitimate method
for the peaceful and legal acquisition of political power and the
culmination of the exercise of some of the most basic fundamental
rights. The various flaws in the electoral process which had been
established should be addressed by the authorities (see p 191, post).

[Editors’ notes: Articles 34(3) and 41 of the Constitution of Zambia Act

1991 (as amended) are set out at pp 145-146, respectively, post.
Section 16(3) of the 1963 Constitution, so far as material, is set out at pp
157-158, post.

Section 2(1) of the Zambia Independence Act 1964 is set out at p 158, post.
Section 18 of the Electoral Act 1991 is set out at pp 171-172, post.

Cases referred to in judgment

A-G v Clarkson [1990] 1 QB 156, UK CA

Akar v A-G of Sierra Leone [1969] 3 ALL ER 384, [1970] AC 853, [1969] 3
WLR 970, SL PC

Cape Brandy Syndicate v IRC [1921] 2 KB 403, UK CA

Capper v Baldwin [1965] 1 ALL ER 787, [1965] 2 QB 53, [1965] 2 WLR
610, UK DC
Kinross, Re Lord [1905] AC 468, UK HL (C of P)
Miyanda v Handahu [1994] SCZ Judgment No. 6, unreported
Motala v A-G [1993] 1 LRC 183, [1991] 4 ALL ER 683, [1992] 1 AC 281,
UK HL; rvsg [1991] 2 ALL ER 312, UK CA
Ormond Investment Co. Ltd v Betts [1928] AC 143, [1928] ALL ER Rep
709, UK HL
Shamwana v People [1985]] LRC (Crim) 120, (1985) SR 41, Zam SC

Legislation referred to:

 146

(1) Halsbury’s Laws of England, 4th Ed. Vol.3, Paragraph 1143

(2) Constitution of Zambia, Article 34 (3) (a), (b) and (e)
(3) Electoral Act (1991) as amended by Act No.23 of 1996
(4) Northern Rhodesia Order-In-Council, 1911
(5) The Barotziland-North-Western Rhodesia Orders-In-Council of 1899,
1902 and 1909
(6) The North Eastern Rhodesia Orders-In-Council, 1900, 1907 & 1909
and Northern Rhodesia Gazettes of the period (e.g. 1923 and 1924)
(7) British South Africa Company’s Northern Rhodesia Government
Gazette number 209 of Friday 21st March, 1924
(8) Government Notices No. 153 of 1924; No. 89 of 1926, No. 107 of
1927 and No. 149 of 1928)
(9) Halsbury’s Laws of England, 3rd Edition, Volume 5 from paragraph
1273
(10) Government Gazette 213 of 1962
(11) Government Notice No. 25 of 1964
(12) Zambia Independence Order, 1964, Section 6(1) and (2)
(13) The Constitution of Zambia (1964) Sections 3, 4, 5 and 6
(14) British Nationality Act,(1948), Section 32
(15) Halsbury’s Laws of England 3rd Edition, Volume 1, in Note (i) at
page 528
(16) Government Notice number 91 of 1934, Government Notices of
Northern Rhodesia at page 109
(17) Affiliation and Maintenance of Children Act Cap 64 of the Laws of
Zambia (1995) Edition
(18) Citizenship of Zambia Ordinance number 61 of 1964, Section 3 (Now
section 11 of Cap 124 of the Laws of Zambia (1995) Edition
(19) Electoral Act, Cap 13 of the 1995 Laws of Zambia, Section 18
Electoral (General) Regulations

For the Petitioners:Mr. M Chona SC. of Mahachi Chambers,

Mr. E.J.Shamwana SC. of Shamwana and Co,
Mr. D. M. Lisulo SC. of Lisulo and Co,
Prof. Mvunga of Mvunga and Associates,
Mrs. N. Mutti of Lukona Chambers,
Mr. S. Sikota of Central Chambers
Mr. Lungu of Andrea Masiye and Co,
Mrs. M. Zaloumis of Dove Chambers, and
Mr. S. Sitwala of Light House Chambers.
 147

For the respondent: Mr V. Malambo and Mr E. Silwamba of Malambo

and Co. 25

__________________________________________
Judgment

NGULUBE,C.J.: delivered the judgment of the court.

Delay in rendering this judgment is regretted but was occasioned in part by

the length and complexity of the case and by the heavy work load and
schedule of other cases which the members of the court had to contend with.
There were over a hundred witnesses; the transcript of the record runs into
well over three thousand pages; there was a vast quantity of documentary
exhibits and it was necessary to analyze all this evidence. The court was
mindful also of the constitutional importance of a case of this kind and
magnitude and the need which is self-evident for thorough reflection and
consideration of the law and the facts. The hearing of the case occupied the
greater part of the period between 10th Feburary and 7th January ,1998.
During the course of such hearing, we were called upon to render and did
deliver several rulings on a variety of issues. We also received detailed
submissions for which we are indebted to counsel on both sides. It should
also be noted, as a novel point, that this was the first time ever when this
court which is essentially an appellate court had to sit as a trial court of first
and last instance under the very special jurisdiction given by the constitution
for the trial of presidential election petitions. Quite early in the proceedings,
we had to construe what would be the "full bench of the Supreme Court" to
hear the case as required by Article 41 of the Constitution when it became
apparent that there were practical difficulties and the distinct possibility of
the trial never taking off. The requirement was found to be fulfilled by
construing it to mean the maximum available odd number of the judges of
the court that could be mustered to hear the case. Both sides agreed and the
trial commenced.

One of the preliminary points raised on which we said we would give our
reasons in the judgment concerned the propriety of the Cabinet Ministers
who are lawyers holding practising certificates appearing as counsel for the
respondent. Objection was taken that it was morally, ethically,
professionally and otherwise improper for the Cabinet Ministers to appear as
counsel for the respondent, among other reasons, the because in the process
 148

they had to neglect their full time ministerial responsibilities. The gravamen
of the submission was that members of the bar who are members of the
executive and also of the legislative branches should not appear on behalf of
an individual though they can appear for the State. One reason for this was
the possibility of a conflict of interest and another was the need to enhance
the separation of powers. Commenting on certain precedents and instances
in this country where Ministers who were practising advocates actually
appeared at the bar in their character quo advocates - (such as was the case
in Shamwana and Others v The People (1985 Z.R. 41 where the Minister of
Legal Affairs was a member of the prosecution team in his character as
Attomey-General) - counsel for the petitioners .submitted that it was now
time to initiate a correct and more acceptable legal culture which would
disallow this sort of thing. The case of In re: LORD KINROSS (1905)A.C.
468 was cited in support. This was a case in which the House of Lords
(Committee for Privileges) held that a barrister who is also a peer may argue
as counsel on an appeal at the bar of the House of Lords, but may not appear
as counsel to argue before committees of the house, or before the house
when sitting under the presidency of the Lord High Steward on a criminal
case. In our considered opinion, this case is infact authority to support the
general proposition alluded to in our brief ruling at the time that any
advocate whatsoever must decline to accept instructions when there are
circumstances which would render it difficult for him/her to maintain the
requisite professional independence or which would in some way impair or
undermine the advocate's ability to promote the best interests of the
administration of justice. Ideally, an advocate should not appear as such in
his own cause as in any other situation of possible want of independence or
conflict of interests or embarrassment generally: See Halsbury's Laws of
England, 4th Ed., Vol. 3 paragraph 1143 et seq. We did not see any conflict
of interest in this matter. If anything, there may have been a case of vested
common interests on both sides, judging from the number-of advocates even
on the petitioners' side who are themselves senior members or leaders of
some of the political parties on whose behalf the petition was brought. It is
not contrary to law for practitioners with current practising certificates who
also happen to be Ministers to have audience and to represent a litigant. It is
certainly undesirable for Ministers to be in active private practice at the bar
but the matter can not be put higher than that.
By their petitions which were consolidated, the petitioners advanced a
number of prayers arising from the several allegations and averments in the
petition. The prayers were in the following terms:
 149

“1. That it may be determined and declared that the provisions of Article
34 (3) (a), (b) and (e) in respect of the Respondent have not been satisfied
and accordingly that the Respondent did not qualify to contest the election
and to be elected President of the Republic of Zambia and that his election
way void.

2. That it may be determined and declared that the Respondent has

falsely sworn as to the citizenship of his parents and is in contravention of
Section 9 of the Electoral Act 1991 as amended by Act No. 23 of 1996.

3. That it may be determined and declared that the Electoral Commission

neglected its statutory duty to superintend the election process thereby
allowing a fraudalent exercise favouring the Respondent.

4. That it may be determined and declared that the election process was
not free and fair and that the election was rigged and therefore nulland void.

5. That the Petitioners may have such further or other (relief) as may be
just.”

The petitioners challenge the election of the respondent as President of

Zambia. By their prayers, the petitioners have raised issues concerning the
respondent's qualifications under the Constitution in respect of his own
citizenship and that of his parents. They have questioned the electoral
process and the way it was handled by the Electoral Commission and they
have asked for the avoidance of the election for the reason that it was rigged
and not free and fair. The prayers arose out of a number of allegations
pleaded in the petition and with which we will be dealing.

As part of the preliminary remarks which we make in this matter, we wish to

assert that it can not be seriously disputed that parlimentary elections
petition have generally long required to be proved to a standard higher than
on a mere balance of probability. It follows, therefore,. that in this case
where the petition has been brought under constitutional provisions and
would impact upon the governance of the nation and the deployment of the
constitutional power and authority, no less a standard of proof is required. It
follows also the issues raise are required to be established to a fairly high
degree of convincing clarity. In a moment we will be examining the
evidence and making our finds with this yard stick in mind. The preliminary
observations would not be complete if we did not set out, at the very outset,
 150

the relevant provisions of the constitution with which we are here concerned.
The constitutional provisions in the question include the controversial
parentage amendments of 1996 so that article 34(1), (3) and (4) read:

"34. (1) The election of the President shall be direct by universal adult
suffrage and by secret ballot and shall be conducted in accordance With this
Article and as may be prescribed by or under an Act of parliament.

(3) A person shall be qualified to be a candidate for election as

President if:

(a) he is a Zambian citizen;

(b) both his parents are Zambians by birth or descent;
(c) he has attained the age of thirty-five years;
(d) he is a member of, or is sponsored by, a political party;
(e) he is qualified to he elected as a member of the National
Assembly; and
(f) has been domiciled in Zambia for a period of at least twenty
years.

(4) A candidate for election as President (hereinafter referred to as a

Presidential candidate) shall deliver his nomination papers to the Returning
Officer in such manner, on such day, at such time and at such place as may
be prescribed by or under an Act of Parliament.”

Article 41(2) reads:

"41.(2) Any question which may arise as to whether:

(a) any provision of this Constitution or any law relating to election of

a President has been complied with;

(b) any person has been validly elected as President under Article 34;
shall be referred to and determined by the full bench of the.Supreme Court "

The other law referred to in these Articles is the Electoral Act and we will be
alluding to it from time to time.

THE RESPONDENT’S QUALIFICATIONS

 151

We now turn to that part of the case which concerned the respondent’s
qualifications.

The issues which arose included who the respondent was; where he was
born; who are or were his parents; what is his citizenship and what is or was
the citizenship of his parents? We heard evidence from basically three
categories of witness, namely the petitioners themselves, the category of
relatives or alleged relatives and acquaintances, and the others who included
officials and writers. It was the petitioners position by their pleading that the
identity of the respondent and the identity of his parents has been and still is
a subject of contradictory public records, public controversy and public
concern and has never been ascertained. Since the petitioners had to
establish an affirmative case and not simply to confirm the controversy, their
final submission was that we should find that the respondent was the
illegitimate son of the witness PW3 Luka Chabala Kafupi who it was
claimed had an illicit liaison with the mother while she was married
allegedly to a Mozambican Jim Zharare Nkhonde; that we should find that
the respondent was born at Chibambo Mission Hospital in the then Belgian
Congo; and that the biological father alleged was at the time an alien as he
himself claimed. The petitioners proceeded on the premise that PW3 is a
Zairean (now Congolese) but who also claims to be a Zambian. They also
proceeded on the footing that the parents of a presidential candidate referred
to in the constitution are the biological and not necessarily the legal parents.
It will thus be necessary to deal with all these aspects.

The petitioners gave evidence touching upon the citizenship qualifications of

the respondent and the possible nationalities of his parents as PWs I(Zulu),
2(Lewanika),8 (Kambaila), 6(Mrs Phiri) and 16(Mungomba). To this list
can be added the petitioner PW35(Dr. Chongwe) though not a petitioner of
record. The petitioners simply made the allegation of want of qualification
and obviously had no personal knowledge or direct evidence to give. They
depended on the other witnesses of fact. Without a doubt, the petitioners
were genuinely and truly aggrieved by the amendments of 1996 which
introduced a requirement that even the parents of a candidate must be
Zambian citizens by birth or by descent, pointing out that the amendments
had managed to knock out in advance of impending elections the former
president of the country and proposed candidate for a major opposition
party which could not even field its deputy leader because another
amendment barred traditional chiefs from active politics.
 152

The next group of witnesses was that of relatives or alleged relatives and
acquaintances.

These were PWs 3(Kafupi), 4(Ngosa), 5(Musangu), 7 (Chilekwa), 13

(Kasuba),14(William Banda), 28(Kakonde), 29(Musonda) 32(Anna
Chilekwa), 33 (Lengwe), 34(Musendeka), 5I(Chikonde), 59(Kenani),
80(Chaziya), 83(Sikazwe) and 102(Mumba). For reasons of economy and
practicality since their evidence is on record, we give only a digest
containing the essentials of their evidence as follows:- PW3, Mr Kafupi,
said that the respondent under the name of Titus Mpundu is his illegitimate
son conceived of an adulterous affair between him and the mother in 1943.
He said the respondent was born in 1944 at Chibambo in Zaire by caesarean
section and all this he was told by the mother. He saw the baby at five
months old and next saw him at thirty-six years in 1980 in the house of one
mother-of -Kapaya (a maternal relative of the respondent) at Musangu
village in the presence of one the late Bismark Chonaula who queried why
the young ones should "promote" him - i.e. acknowledge and recognise him
- when the elders had not. The respondent is alleged to have said in Swahili
a remark to the effect that a lion when stranded could even eat grass, a
reference to PW3's attempt to be accepted so late in the day.

PW3 was seventy-eight years old when he testified, which meant he was
born in about 1919. He said his own parents had settled in Zambia although
he did not specify whether .this was during the last or at the turn of this
century. He said he was both a Zambian and a Zairean because, although his
parents had settled in Zambia and he had been conceived in Zambia at
Musangu villlage, he was born at a place in Zaire where his then pregnant
mother was visiting a sick relation. He has a green national registration card
which is reserved for Zambian nationals.

As will be seen later in this judgment, PW3 was born at a time when the
former British protectorate of Northern Rhodesia (as Zambia was called
before independence) was divided into North Western Rhodesia and North
Eastern Rhodesia. Together with Barotseland, the territory was then being
governed by an Administrator of Northern Rhodesia from the British South
Africa Company on behalf of a High Commissioner based at Cape Town.
This was before that company handed over the administration of Northern
Rhodesia to the British Crown on 1st April,1924, under the Northern
Rhodesia Order in Council, 1924.
 153

The next witness in this line was PW4, Mr Thomas Ngosa who gave his
evidence with much undisguised bitterness against the respondent whom he
claimed to be some sort of second cousin. He deposed that he knew the
respondent as Titus Mpundu Chabala; that the respondent’s mother lived in
Luanshya with mama Kapoma Bangwa; that the respondent’s mother was
married in Luanshya to a Tukuyu man and that she was put in a family way
by PW3 when she visited the village. He said as a result her husband then
chased her. The witness said he was eight years old at the time of the events
to which he was deposing. He said at age nine years, he visited the
respondent’s mother in Chibambo Hospital in Zaire where the respondent
(the survivor of twins, a girl and a boy) was born by operation at the hands
of one Dr. Dixon.

This witness fared rather badly under cross-examination, even claiming he

could not know fellow children and relatives living in the same village
allegedly because he was from a poor family. We found his explanations to
be as incredible as his other claim that at eight years old he attended a
meeting at which PW3 was warned not to claim the pregnancy as his. This
was a witness who was untruthful when he said he was visiting a relation of
the respondent’s known as the mother-of Blaston up to 1984 when she had
died in the fifties. This was the witness who failed to identify two
gentlemen by the names of Bunkum and Blaston whom he had earlier
claimed were his relations and were also relations of the respondent when
they were paraded in court. It was highly improbable that PW4 could have
been personally privy as a young lad to the kind of facts he sought to speak
to. In any event, he withered under cross-examination.

Next, there was PW5, Mr. Gilbert Musangu Chipulu. His evidence was that
he knew the respondent as Titus Mpundu while they were schoolmates in the
villages and they played together after the respondent had been expelled
from Kawambwa Secondary School. He also knew PW34, Champo Thom
Musendeka. Later, he learnt that the respondent who was then in the Zambia
Congress of Trade Unions was now going by the name of Frederick Chiluba.

The next witness in this category was PW7, Mr. Mark Chilekwa who was
called to establish another possible father different from PW3. He said he
knew the respondent to be Titus Mpundu Jim Zharare Nkhonde whose father
was Mr. Jim Zharare Nkhonde, a miner and part-time herbalist of House
number D.4/190 Wusakile Mine Township, Kitwe. He said he ate and
played together with jim and Titus, the sons of Mr Nkhonde, during school
 154

holidays when they would come from schools in Luapula. According to

PW7 Mr. Nkhonde who was a widower was a close friend of their family
and used to say he came from Lourenco Marques, Tete Province, Zumbo
District, in Mozambique. He disputed the details of the father given by the
respondent at nomination. He said he had associated with the respondent
from 1955 to 1959, and next saw him in 1977 (according to the evidence in
chief) or in 1976 (under cross examination). He was surpirsed to hear that
the names had changed to Frederick Chiluba. He said he had resigned from
employment with Zambia National Tourist Board voluntarily but accepted
when pressed that he was in fact imprisoned for an offence involving
dishonesty.

We can interpose two small observations here. One is that there can be no
doubt whatsoever that the respondent started life under the names Titus
Mpundu and later changed them to his current names. During the course of
the hearing, a question arose whether persons could change their names
informally, more or less. The short answer seems to be that name – changes
before the coming into force of the National Registration Act could
apparently take place quite informally so that any formalities and official
practices since introduced can not be resorted to in a discussion of name –
changes that occurred prior to registration under that Act. The second
observation is a passing comment arising from the evidence of PW7 viewed
against the evidence of PW4 who said that the father chased the mother
when he discovered that she was pregnant by another man: One wonders
then how come the father kept the child who was the result of the illegal
pregnancy.

The next witness in this line was PW13, Mr. David Kasuba, President of a
very minor political party. He did his early primary schooling in Mambilima
in Zambia and did the rest in Zaire where he even held political posts, as
well as the post of Chief Executive Secretary in that country's Ministry of
Health. He oversaw the Africanisation programme at Chibambo Mission. He
produced the certificate of registration - the "Chitupa" - of his grandfather
one Moses Kabambale a Northern Rhodesian working at Chibambo Mission
Hospital under Dr. Dixon whom he knew personally. Subsequently he was
told that the respondent was his relative and that one of his parents was not a
Zambian, while the respondent himself may have been born outside Zambia.
Being aggrieved by the citizenship and domicile provisions in the 1996
amendments to the constitution, he resolved to investigate by conducting an
opinion poll in the villages as to who the villagers considered to be the
 155

respondent's father. All this multiple hearsay was ruled inadmissible. Mr.
Kasuba’s evidence was of doubtful value even on the question of whether
PW3 was the father or not.

Next was PW14, Mr. William K. A. Banda who was sixty-one years old
when he testified. He said he came to know the respondent as Titus Mpundu
in 1960 in Mufulira: where the respondent was then staying with an elder
sister in Kankoyo township. The witness testified that the respondent was
then a street vendor of vegetables. Towards the end of 1962 to mid 1963, he
kept the respondent at his house together with one John Kapapi Mwansa,
who was another relative of the respondent. He found a job for the
respondent with Central African Road Services (CARS). In mid 1963, the
respondent was transferred to Kitwe. Mr. Banda said the respondent used to
say his father was "Kafupi" who was somewhere in Zaire. He said the
respondent spoke Lingala - a Zairean language - and not Swahili to the
Zairean lady vendors. Subsequently, he heard that CARS had sent the
respondent to open a branch in Tanzania. Later, he met the respondent in
Ndola in 1976 when he was now called Chiluba.

There were some witnesses called by the petitioners whose evidence was to
be classified with that of the witnesses testifying to the respondent's personal
history and background but whose evidence was so utterly useless that we
will not waste time reviewing it. An example of this was the testimony of
PWI Mr Chalo Wisdom Muwowo whose evidence flew in the teeth of many
other perfectly acceptable accounts when he tried to show that the
respondent never went to Kawambwa Secondary School. The witness infact
went to that school long after the respondent had been expelled. Of the same
flavour was evidence called to show that the respondent never lived in
Kitwe.

The next witness of some substance in this line was PW28, Mr. Elijah,
Mwape Kakonde who was bom in 1943. He was called upon to recall events
when he was seven or so years old. He hails from Musangu Village and
knew the respondent there as Titus Mpundu. He said in the early 1950s he
lived with the respondent in a mutual relative's home, namely in the house of
one Mr. Chonaula. As far as he had heard, PW3 Mr. Kafupi was the "real"
father of the respondent. In reference to PW4 ( Mr Ngosa), the witness said
in one breath that he lived in town and in the next that he lived in the village.
The witness got confused with the names of the people he intended to refer
to. He was able to tell the court that Mr. Ngosa’s relatives included Bunkum
 156

Mwenya who was Headman Kaombe, the mother-of-Kapaya, and Zharare

the elder brother of Titus Mpundu.

The witness lost his temper and fumbled very badly under cross-
examination. He got thoroughly confused in his references to Ngosa and also
in reference to when he started schooling allegedly in 1950. According to
him, the respondent had started school earlier than him. Other evidence
which was more acceptable showed that the respondent started school in
1952. PW28 fared rather badly in the witness box, particularly under cross-
examination. We found him not be a witness of credit.

The next witness in this group was PW29 Mr. Jonathan Musonda who was
39 years old and could only depose to what he had been told and what he
heard, which was all hearsay. He had heard that the respondent was Titus
Mpundu and that PW3 was his father. He was able to say that the
respondent's relatives included Bunkum, Blaston, the witness Ngosa (PW4)
and the respondent's brother Jim Nkonde.

PW32 was Anna Mwansa Chilekwa, the sister of PW7 Mark Chilekwa. She
testified that as an eleven-year-old in 1955, she came to know Jim Zharare
Nkhonde and his younger brother Titus Mpundu Jim Zharare Nkhonde who
is now known as Frederick Chiluba. She said that they lived with their
father a Mozambican called Jim Zharare Nkhonde who was a widower and
underground miner but who was also a herbalist and helped their mother
conceive and have the youngest sister Zuze now living in Zimbabwe. The
youngest sister was named Zuze by Mr. Nkhonde. The witness said that the
parents became close friends; PW7 slept at Mr. Nkhonde's house and when,
his two sons came for holidays (between 1955 and 1959) they played and ate
together. She testified that she has since visited the respondent at State
House and has been given some money. She said that after the public debate
had started over the respondent's identity, government functionaries drove
her to Luanshya with a view to seeing her mother whom they did not find.
They threatened her if she talked about knowing the respondent as a result of
which she sought an appointment with the respondent. When she saw him,
he disclaimed the threateners and gave her a gift of money.

The next was PW33, Mr. Jonathan Mulundu Lengwe. He testified that a Mr.
Maxwell Kalesha Chisoko, his mother's true brother, lied on a television
programme to say the respondent was his (Kalesha's) nephcw from his sister
when the respondent is not a relative of theirs at all.
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PW34 was Ruben Champo Thom Musendeka. He told the court that he
knew the respondent as Titus Mpundu in 1956 when they were in the same
class in standard three at Lubunda Primary School. They continued to be
classmates until they completed standard six in 1960 at Johnston Falls. In
August 1960, they went together for Form 1 at Kawambwa Secondary
school. From what he heard, the respondent's father was PW3. The witness
said that in 1961 in the last term of Form 1, the respondent, the witness and
twenty others were expelled from school for a protest demonstration and
refusing to cart firewood on the head when the Headrnaster had a vanette
which he refused to be used for the purpose. He said he and the respondent
were the ringleaders and had been emboldened because they had smoked
dagga. He told the court that the Headmaster delivered all the expellees to
their villages in the vanette. He continued to visit the respondent until one
evening the respondent and two companions of his arrived at his home on
foot, carrying their suitcases, en route to Mufulira. He next saw the
respondent in Mufulira in 1965 when, still as Titus Mpundu, he was
working for CARS as a bus conductor. The witness next saw the respondent
at an MMD rally in 1991 and marvelled that Titus Mpundu was now called
Frederick Jacob Chiluba.

He tried to see him without success and finally decided in 1995 to go to the
Post Newspaper to reveal what he knew of the respondent's identity.

PW51 was Mrs. Evelyn Chikonde. When she was nine or ten years old, she
knew the respondent as Titus Mpundu at Kawambwa where he was a friend
of her brother. She said he got expelled for smoking dagga. The witness -
who was the UNIP Women District Chairperson for Ndola - told the court
that the respondent said his father was Kafupi Chabala and that her own
father assisted Titus with transport money after the expulsion from school.
This was in contrast with PW34 who said the school principal delivered the
expellees to their parents’ homes. PW51 said that during the run up to the
1991 general elections, the respondent had vowed to deal with her for not
supporting his campaign and she believes that most probably it was the
respondent who engineered her dismissal from her job at the Ndola Central
Hospital. PW51 came through as a most unimpressive witness.

PW59 was Mr. J.P. Chibwe Kenani, the UNIP District Chairman for
Chingola. He said he went to the Post Newspaper to refute media claims by
his long-standing friend, one Maxwell Kalesha Chisoko that he was the
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respondent’s uncle. He said that in 1990 during a discussion about certain

problems in the Mine Workers Union of Zambia where Chisoko was a
branch chairman, the respondent was allegedly heard to remark that he did
not know this Maxwell Kalesha Chisoko.

Next in this line of witnesses was PW80 Mr. John Jamale Chaziya who was
69 years old and who migrated from Mozambique, as the former Portugues
East Africa is known. He told this court that he was related to one Zhuwao
Sixpence Tembo and his cousin one Jim Zherari who left Mozambique and
went to Salisbury (now Harare) to seek work in the 1920’s. In 1943, the
witness trekked to Salisbury in the then Southern Rhodesia where he learnt
carpentry. From there, he moved to Ndola in the then Nothern Rhodesia in
April 1950. In 1954, he met a fellow Mozambican called Kamuchacha who
told him about Sixpence being in Mufulira. He cycled to Mufulira and
found Sixpence who called Jim Zherari from his own house in the Mufulira
mine township. Sixpence introduced the witness to Zherari who came with
his son aged about twelve years old who was introduced as Titus Zherari and
who was said to be the survivor of twins who were both males. From the
various accounts before the court the respondent would have been about ten
or eleven years old in 1954. However, to continue with the summary, the
witness said he next saw the respondent then known as Frederick Chiluba at
Atlas Copco in Ndola in 1976 and the respondent started visiting the
witness, sometimes in company of his father-in-law a Mr. Ndhlovu, said to
be the father of the first lady.

The witness said that in 1979, when the respondent felt harassed by other
trade unionists, he (the respondent) reported that he had met and talked to
Honourable Joachim Chissano (President of Mozambique but at the time its
foreign Minister) who said the respondent could go home to Mozambique
any time. PW80 hotly disputed any claims to the respondent by Zaireans or
alleged Zaireans.

Next was PW83 Mr. Rodwell Kasonteka Sikazwe who, apart from alleging
that the respondent had manipulated the constitution of a certain trade union,
testified that his brother-in-law Maxwell Chisoko Kalesha can not possibly
be the respondent's uncle, as he had falsely claimed on television.

Finally in this group of witnesses, there was PW102, Mr. Harry John
Mumba who said that he came from the same area as the respondent who
 159

was known as Titus Mpundu. He said they went to the same primary schools
and that he had heard that PW3 was the respondent's father.

Then there was the category of witnesses whom we have referred to as the
others whose evidence in some way touched upon the issue of the
respondent's qualifications. These included PWs 9,10,11,12,23,25,38,
48,52,61, 62,87,88,94,95,96,103,104,105,106, and 107. PW9 was Mr. Basil
Kabwe whose evidence on the issue was of no value. He grew up and
attended school in Wusakile, Kitwe, and said that during that time he did not
know the respondent. The evidence of PWIO, Mr. Sketchley Sachika along
the same lines was equally of little assistance. He also said that he knew the
respondent in Kitwe in the 60's as Titus Mpundu but that later in Ndola in
1967 or 68 he learnt that he was now Frederick Titus Chiluba. PW11 was
Mr. Charles Simpute from the Registrar General's office. He produced the
official records of the respondent as Fredrick Jacob Chiluba, NRC No.
168118/67/1. He also talked about the procedures for change names under
the National Registration Act, CAP. 126, and the Regulations. The Act came
into force in July 1964 and regulations in 1965. A perusal of this law shows
that only a registered person was required to follow the procedure for a
change of name, especially the surname. It follows therefore - as we have
previously observed - that the statutory procedures are irrelevant to changes
made prior to the date of the Act and prior to registration. It follows also that
the Act was irrelevant to persons who died before any registrations started.
PWI2 was Mr. Thilasi, the Chief Passport and Citizenship Officer. He
produced the official file on Frederick Jacob Chiluba, which showed that the
father was given as Jacob Titus Chiluba of Musangu Village, Chief
Lubunda, Mwense District. There was no record on file to show that the
father was also known as Jacob Titus Chiluba Nkonde of Lengwe Village,
Kawambwa District, as set out in the respondent's oath at nominations.

The next witness under this category was PW23 Jumbe Ngoma who said
that his company - Multimedia - printed the book by the respondent called
"Democracy – The Challenge of Change” which was produced as an exhibit.
It has a brief auto-biographical note about the respondent. PW25 was the
learned Mr. John Mwanakatwe, S.C. who wrote the book "End of Kaunda
Era" which the petitioners produced in evidence to show the conflicting
biographical details of the respondent. The witness wrote in that book that
the respondent was born in Musangu Village as Frederick Jacob Titus
Mpundu; that the father was a miner while the mother died when the
respondent was very young; and that the respondent started primary school
 160

in Wusakile, Kitwe. While PW25, alleged in his book that the respondent
was born in Musangu started in Wusakile, all other books and articles,
including books, affidavits and official forms attributable to the respondent
talked about birth in Wusakile, Kitwe. The only other publication produced
in evidence which suggested birth in Luapula Province was the book (which
was Exhibit P.7) by the National Democratic Institute of the United States of
America who were involved in monitoring the landmark elections of
October 1991. As far as schooling goes, all other evidence was that the
respondent went to schools in Luapula province only. In fairness to PW25,
he was not adamant and graciously acknowledged that a mistake may have
been made.

PW38 was Mr. Hamusankwa of the Chronicle Newspaper who said he had
read the contradictory biographical materials in Mr. Mwanakatwe's book and
in the respondent's book. He sent a questionnaire to Mr. Mwanakatwe and
published his reply and an article calling upon those concerned to come
forward and clear the air. They did not come forward.

PW48 was Mr. Justine Mwiinga of the Zambia Daily Mail newspaper. He
informed their Lordships that he wrote about the President's origins,
nationality and place of birth. He was in a delegation co-sponsored by the
government which travelled to Zaire and found no documentary evidence
that the respondent was born at Chibambo Mission Hospital. He wrote an
article about it which was produced in evidence and which was pro-the
respondent and highly critical of other earlier reports by other newspapers as
to the respondent's alleged place of birth. He also wrote that contrary to
other reports there was no Zambia Electricity Supply Corporation powerline
from Musangu Village to Chibambo Mssion Hospital. The witness wrote
that Chibambo Hospital did not exist at the time of the respondent's birth.
This assertion is to be contrasted with other evidence that it did exist as far
back as 1930 or oven earlier.

PW52 was Mrs. Pauline Banda of the Zambia Daily Mail who did not make
any useful contribution to the case. She was called to produce an article
which she had written about a protest staged against the then MMD
Publicity Secretary Mwangilwa who was reported in the Post Newspaper to
have confirmed that the respondent was born in Zaire. PW61 was Dr.
Mwacalimba, the UNZA Librarian whose evidence added nothing useful.
He was called ostensibly to produce the respondent’s Master of Philosophy
Dissertation where there is an autobiography that he was born in Kitwe at
 161

Wusakile to Titus Jacob Chiluba Nkonde and Daina Kaimba. Another

unhelpful contribution was made by PW62 Mr. Jabani of Zambia
Information Services (ZIS who was called to produce a pamphlet since
unauthenticated on the respondent, giving his background and academic
qualifications. The pamphlet was rendered even more useless when PW87,
Mr. Muyunda Sibeso from the Government Printer, was called to say that
the government Printer did not in fact print the exhibited pamphlet for ZIS
on the respondent so that the legend on it to that effect was false.

PW88 was Mr. Phiri an artist whose contribution was not usable. He sought
to show that a picture of the respondent can be “aged” to look like PW3 and
the latter’s picture can be “rejuvenated” to look like the respondent. He did
the same for Dr. Kaunda and his son Panji. If anything reliance even to a
very tiny degree can be placed on mere resemblance of persons, the court’s
own ocular observation would be more trustworthy than the liberties taken
by a fertile artistic imagination. If entertained, Mr Phiri would have us
believe that sons and fathers can be transmuted at different ages into
virtually identical likeness almost of the identical twins kind. We have
discounted Mr. Phiri’s evidence.

PW94 was Mr Kaira from the Times of Zambia Newspaper whose evidence
was not useful to the issue being discussed. He reported on the death of one
Edward Chiluba described as the respondent’s brother without verification.

PW95 was Mrs. Mutiti of the National Archives. She produced the file on
Chibambo Mission Hospital in Congo-Belgium which had been heavily
tampered with by a person or persons unknown. She said the file went
missing for some days only to re-appear mysterously on her desk. Someone
went to a great deal of trouble to “doctor” the file so that there should be no
documents showing the hospital existed even before the respondent's birth.
The documents showed it was a Christian Missions in Many Lands (CMML)
Church Mission Hospital which was grant-aided by the Northern Rhodesian
government because of its service to the local inhabitants of the border area.

PW96 was Masautso Phiri of the Post Newspaper who was an active
collaborator with the petitioners. His evidence dealt with issues of the
respondent’s qualifications as electoral issues. We digest here the evidence
as he touched upon the question of qualifications. The witness told this court
that he had seen documents generated by various persons or authorities
which gave conflicting bio-data on the respondent, for instance, the official
 162

MMD bio-data of 1991 said he was born somewhere in Luapula. He said an

anonymous circular suggested PW3 as the respondent's father. In March
1995 out of curiosity while on a trip to Luapula, he decided to call on PW3
at Musangu Village and interviewed him. He re interviewed him on a
subsequent occasion and wrote PW3's story in the Post Newspaper. He also
photocopied the entire Chibambo Mission Hospital file at the National
Archives when it was still intact and which was later nobled. The photocopy
file was admitted in evidence. He also produced books on the Hospital. He
said the Post investigated and published stories about Chibambo which were
duly countered in the government media for instance, by the “In search of
truth” project and press conferences by Minister Ben Mwila. Cross
examination revealed that the witness has sent two persons called Bondo
Lusato and Simusokwe to cook up documents from Chibambo recording the
alleged birth of the respondent and that both his parents (in this context
Daina and Kafupi) were Zaireans. To his credit, it should be stated that the
witness did not attempt to produce the alleged birth certificate.

PW103 was Mr. Vicent Tembo, Deputy Chief Inspector of Schools. His
evidence was not useful and was to the effect that he failed to find any
record at any school in the names Titus Mpundu or Titus Mpundu Chabala
or Frederick Jacob Chiluba or Frederick Chiluba as records were not kept by
the various schools. PW104 was Mr. Joseph Phiri, the Archivist for Zambia
Consolidated Copper Mines (ZCCM) whose evidence was equally not
useful. He said he had checked the personnel records from 1929 and found
none in the names Jacob Titus Chiluba Nkonde, or Jacob Chiluba, or Jacob
Nkonde, or Titus Chiluba, or any combinations of these names. He did not
check for house occupancy records. When counsel for the respondent
showed him a record for a Jacob Chiluba he said another team of researchers
must have pulled it out. It seemed possible that the records had all been
nobled. PW105 was Mr. Msimuko of ZCCM whose evidence was equally
unhelpful. He produced records cards for employees with the names Jacob
Chiluba or Titus but none under Nkonde or Nkhonde. Equally unhelpful
was the evidence of PWs 106 and 107, Dr. Siatwinda of ZCCM Luanshya
and Dr. Simukonde of ZCCM Kitwe respectively. They did not find any
records of birth that might have been for the respondent.

In a nutshell, the foregoing was the evidence concerning the issues of

qualification which was placed before us. The issues to be addressed
included where the respondent was born; who are or were his parents; what
is his own citizenship and what is or was the citizenship of the parents. In
 163

paragraph 9 of the petition, the petitioners averred that the identity of the
respondent and the identity of his parents has been and was a subject of
contradictory public records, public controversy and public concern and has
never been ascertained. It is a fact that there was public debate and
controversy in the media regarding the respondent’s place of birth and
parentage especially in respect of his father. However, controversy alone
does not take the matter very far. It is also a fact and we so find that
Chibambo Mission Hospital contended for by some existed and operated
long before the respondent’s birth; but so did Wusakile, Kitwe and Musangu
Village the other places mentioned. Indeed, so did Luanshya mentioned by
PW4 Mr. Thomas Ngosa. It follows that purely as a matter of possibility
and technically, he could have been born in any one of these places. From
the petitioner’s point of view, the most desirable finding would be that the
respondent was born at Chibambo. If, for the sake of argument that were the
case, would birth at a nearby hospital in another country render a person a
non-Zambian citizen? The current and latest position under the Constitution
(In fact since 1973 – see Act 27/73) is that a person born in or outside
Zambia becomes a citizen at birth if at least one of his parents is a citizen,
thus ensuring citizenship by birth and descent. However, the position is that
we have to consider the citizenship of persons who become Zambians on
24th October, 1964, a matter which is governed by the Zambia
Independence Order and the Constitution which was scheduled to it.

We had to research into the Constitutional and other legal instruments

applicable from the beginnings of any kind of nationhood or statehood for
this country. We took note of African migrations and the partition of Africa
as recorded by historians. Zambia was formerly the protectorate of Northern
Rhodesia in which the British Crown acquired jurisdiction under
concessions and undertakings of protection at various times between 1891
and 1900. The King of the Lozi’s gave what was North-Western Rhodesia
to the British, while four or so other chiefs signed away what was North-
Eastern Rhodesia. The protectorate was first administered under Charters
and Orders in Council by the British South Africa Company. An
administrator of Northern Rhodesia governed the territory on behalf of a
High Commissioner who was based at Cape Town. An all-white Advisory
Council acted as some kind or non-binding legislature: see generally The
Northern Rhodesia Order in Council, 1911 and the previous orders which it
revoked, namely The Barotseland-North-Western Rhodesia Orders in
Council, 1899, 1902 and 1909 and the North-Eastern Rhodesia Orders in
Council, 1900, 1907 and 1909. As a nascent but coherent political entity,
 164

this country started off as a white man’s country and it was viewed as
suitable for European settlement. A perusal of the Northern Rhodesia
Gazettes of the period (e.g. for 1923 and 1924) shows that some whites
were even applying for letters of naturalization under the Northern Rhodesia
Naturalization Order in Council, 1914. The minutes of the Advisory
Council meetings with the Administrator gazetted in 1923 and 1924 show
that even as the British South Africa Company prepared to hand over the
administration and governance of Northern Rhodesia to His Majesty’s direct
jurisdiction, European settlement was uppermost in their minds. This was to
be reflected in the formal “Constitutional” instrument promulgated, which
was the Northern Rhodesia Order in Council, 1924 published in the British
South Africa Company’s Northern Rhodesia Government Gazette No. 209
of Friday, 21st March, 1924. This order in Council (a) constituted the office
of Governor and defined his powers; (b) constituted an advisory Executive
Council; (c) provided for a Legislative Council; (d) provided for the courts;
and (e) provided for native affairs. There were also detailed royal
instructions given to the Governor (see page 27 of the Gazette) clause 23 of
which enjoined the Governor to ensure the welfare and interests of the native
inhabitants, especially their religion and education. The natives were not
directly or indirectly involved in the legislature which was outlined in a
separate order in Council.

On Tuesday, 1st April,1924, Herbert James Stanely, former Imperial

Secretary under the High Commissioner for South Africa became the first
Governor of Northern Rhodesia. Between 1924 and 1928 (see for example
Government Notice No. 153 of 1924; Government Notice No. 89 of 1926;
and Government Notice No. 107 of 1927) Commissions of Inquiry were set
up to recommend the establishment of Native Reserves for the benefit of
natives along the line of rail and in other districts who would be affected in
their occupancy of land by actual or probable European Settlement along or
near the railway line or by actual or probable mineral development or near
the same. Elsewhere in the territory, it was found necessary to set aside land
for the exclusive use of the natives and which would not be available for
expansion of white settlement. The exercise was crowned by the Crown
Lands and Native Reserves Order in council, 1928 and the Regulations (see
page 69 for the Order in Council and Government Notice No. 149 of 1928
for the Regulations).

As far back as 1927, the European settlers discussed plans to merge

Northern Rhodesia with other East African dependencies or with Southern
 165

Rhodesia or even to split it up and add the parts to other adjacent territories –
see the Governor’s speech to the Legislative Council at page 247 et seq of
the Gazette. The reason advanced for this was the alleged sparse population
which made it necessary – according to the Governor – for the native labour
to circulate freely to and from Nyasaland, Portuguese East Africa, Katanga,
Southern Rhodesia and Tanganyika. the natives were viewed as a source of
cheap labour and were to be encouraged free movement in all the
surrounding countries and within the territory –see the governor’s speech to
the Legislative council on 16th April 1928 (page 56 et seq). And so it was
that for the purposes of native tax, the colonial administration taxed two
categories of native, that is to say, natives with a village and domiciled in the
territory and natives domiciled in some other country but resident in the
territory. And so it was too that under the Native Registration Ordinance,
CAP 59 of the Laws of Northern Rhodesia 1930, indigenous natives of
working age had had to register while alien natives of working age had to
register under the Alien Natives Registration Ordinance, CAP 60 of the
Laws of Northern Rhodesia, 1930. Under the latter statute, alien natives
who had shown an intention to settle in the territory could be treated as
natives of the territory.

Meanwhile, the European settlers brought in the ill-fated Federation of

Rhodesia and Nyasaland. Northern Rhodesia continued to be a protectorate.
As from 1948 when two Africans got into the Legislative Council, the so-
called natives steadily began to make in-roads into the political organs of
Government. A useful summary of this can be read in Halsbury’s Laws of
England, 3rd Edition, vol. 5 from paragraph 1273. We are taking some time
to outline the constitutional progression to statehood for a good reason
which will soon become apparent.

The next “Constitutional” milestone was the passing of The Northern

Rhodesia (Constitution) Order in Council, 1962 –see Gazette 213 of 1962.
This Order (a) revoked the previous “Constitutional” Orders in Council; (b)
made provision for the governor, the Executive Council, the Legislative
Council, the High Court and the House of Chiefs; (c) provided for a power-
sharing arrangement between the Europeans and the Africans; and also the
Coloureds and Asians; (d) it divided the voters into higher franchise and
lower franchise voters; (e) such voters had to be, inter alia, a citizen of the
United Kingdom and Colonies or of the Federation of or a British protected
person by virtue of his connexion with Northern Rhodesia. Under this
arrangemesnt the right to vote was given to any British protected person by
 166

virtue of his connexion with the Territory; or any British subject or a British
protected person who had been resident for an aggregate of at least four
years out of the preceding seven years; or a resident registered under a
chief’s area; or any person who had been continuously resident for seven
years during the preceding ten years; or the wives of any of the foregoing.

The Order of 1962 was revoked by that of 1963 – see Government Notice
No. 25 of 1964 vol. 1 of Government Notices from page 228. The 1963
Constitution introduced a bill of rights which included a non-discrimination
clause excepting, inter alia, “with respect to persons who do not belong to
Northern Rhodesia”. It also introduced a Constitutional Council. Up to this
point in time the British nationality law both statutory and common laws
applied and there was in none of what may be termed the “Constitutional
instruments” thus far any talk of “Citizenship” of Northern Rhodesia.
Instead, chapter 1 of the 1963 Constitution talked of persons belonging or
not belonging to Northern Rhodesia. Section 16(3) of the 1963 Constitution
provided as follows:-

“16 (3). For the purposes of this chapter a person shall be deemed to
belong to Northern Rhodesia if he is a British subject or a British protected
person and:

(a) was born in Northern Rhodesia or of parents who at the time of

his birth were ordinarily resident in Northern Rhodesia;
(b) has been ordinarily resident in Northern Rhodesia continuously
for a period of seven years or more and since the completion of such period
of residence has not been ordinarily resident continuously for a period of
seven years or more in any other part of the common wealth;

(c) is a citizen of the United Kingdom and colonies by virtue of

registration in Northern Rhodesia, or the grant of naturalisation in Northern
Rhodesia, under the British Nationality Act, 1948;

(d) is the wife of a person to whom any of the foregoing paragraphs

applies not living apart from such person under a deed of separation; or

(e) is the child, stepchild, or child adopted in a manner recognised

by law under the age of eighteen years of a person to whom any other
foregoing paragraphs applies.”
 167

A little later, we will be citing the House of Lords’ decision in Motala And
Others v Attorney -General (1991)4 ALL E.R. 682 among other things in
connection with the automatic though there unwelcome acquisition of
Zambian Citizenship by operation of law by the children of parents who had
migrated to Northern Rhodesia from India. For the moment, we rely on it
too as very persuasive authority for considering the question of citizenship
against the backdrop of the pre-existing or previously existing state of the
law and official practice. We would figuratively speaking underline the
constitutional provision which in 1963 said a person “belonged” to Northern
Rhodesia if born there or even if only born”….of parents who at the time of
his birth were ordinarily resident…” There were thus no persons known as
citizens of Zambia prior to 24th October ,1964.

Zambia Citizenship came with the grant of independence and it is the legal
instruments of that time which made provision for the very first time for
citizenship of Zambia. In this connection we wish to refer to some salient
provisions in the Zambia Independence Act 1964; The Zambia
Independence Order, 1964, and the Independence Constitution which it
ushered in.

We wish to quote Sections 2(1) and 3(2) and (3) of the Zambia
Independence Act 1964 which read:

''2. Operation of existing law----(1) Subject to the following provisions

of this Act, on and after the appointed day all law which,whether being a
rule of law or a provision of an Act of Parliament or of any other enactment
or instrument whatsoever, is in force on that day or has been passed or made
before that day and comes into force thereafter, shall, unless and until
provision to the contrary is made by Parliament or some other authority
having power in that behalf, have the same operation in relation to Zambia,
and persons and things belonging to or connected with Zambia, as it would
have apart from this subsection if on the appointed day Northern Rhodesia
had been renamed Zambia but there had been no change in its status."

3. (2) A person who, immediately before the appointed day, is for the
purposes of those Acts and of the said Order in Council of 1949 a British
protected person by virtue of his connection with Northern Rhodesia shall
not cease to be such a British protected person for any of those purposes by
reason of anything contained in the proceeding provisions of this Act, but
shall so cease upon his becoming a citizen of Zambia.
 168

(3) Except as provided by section 4 of this Act, any person who

immediately before the appointed day is a citizen of the United Kingdom
and colonies shall on that day cease to be such a citizen if he becomes on
that day a citizen of Zambia.”

Thus, it is seen that those who granted this country its nationhood made
provision that, until replaced, the existing law, that is to say the law existing
before independence day, should continue to operate in relation to the
country as well as to “persons and things belonging to or connected with
Zambia” as if Northern Rhodesia had simply changed its name without
change in status. We should also draw attention to the fact that the terms of
the citizenship provisions at independence which we are about to set out
made no suggestion that being native or indegenous or of any particular race
would be part of the definition of criteria. Section 6(1) and (2) of the
Zambia Independence Order, 1964 read as follows:

“6. (1) Any person who, at the commencement of this Order, is entitled
to be registered as a citizen of Zambia under section 4 or 8 of the
constitution shall, until he becomes a citizen of Zambia or until 24th
October, 1966, (whichever is the earlier) and subject to the provisions of
subsection (3) of this section, have the status of a citizen of Zambia.

(2) Any person who has the status of a citizen of Zambia by virtue of
the provisions of this section shall be regarded as such a citizen for the
purposes of the provisions of the Constitution (other than Chapter II or
section 66 (1) and the provisions of any other law for the time being in force
in Zambia (other than a law made or having effect as if made in pursuance of
section 11 of the Constitution).”

The Constitution which was a schedule to the Zambia Independence Order

dealt with citizenship in chapter II. Sections 3, 4, 5 and 6 of that
Constitution were in the following terms:--

“3. (1) Every person who, having been born in the former Protectorate of
Northern Rhodesia, is on 23rd October,1964, a British protected person shall
become a citizen of Zambia on 24th October,1964.

(2) Every person who, having been born outside the former
Protectorate of Northern Rhodesia, is on 23rd October,1964, a British
 169

protected person shall, if his father becomes, or would but for his death have
become, a citizen of Zambia in accordance with the provisions of subsection
(1) of this section, become a citizen of Zambia on 24thOctober, 1964."

"4. (1) Subject to the provisions of this section, any woman who, on 23rd
October, 1964, is or has been married to a person--

(a) who become a citizen of Zambia by virtue of section 3 of this

Constitution; or
(b) who, having died before 24th October, 1964, would but for his
death, have become a citizen of Zambia by virtue of that section,
shall be entitled, upon making application in such manner as may be
prescribed by or under an Act of Parliament, to be registered as a citizen of
Zambia.

(2) Subject to the provisions of this section, any person who, on 23rd
October,1964, is a citizen of the Untied Kingdom and Colonies, having
become such a citizen by virtue of his having been naturalisedor registered
in the former Protectorate of Northern Rhodesia under the British
Nationality Act 1948, shall be entitled, upon making application before such
date and in such manner as may be prescribed by or under an Act of
Parliament, to be registered as a citizen as a citizen of Zambia:

Provided that any person who is under the age of twenty-one years
(other than a woman who is or has been married) shall not be competent to
make an application for registration under this subsection, but an application
may be made on behalf of that person by his parent or guardian.

(3) Subject to the provisions of this section, any woman who-

(a) is on 23rd October, 1964, married to a man who after that date
becomes a citizen of Zambia; or
(b) is on 23rd October, 1964, married to a man who becomes
entitled to be registered as a citizen of Zambia under subsection (2) of this
section but whose marriage is terminated after that date by death or
dissolution and before that person exercises his right to be so registered,
shall be entitled, upon making application before such date and in such
manner as may be prescribed by or under an Act of Parliament, to be
registered as a citizen of Zambia.
 170

(4) Subject to the provisions of this section, any woman who on 23rd
October 1964 has been married to a person who becomes or would, but for
his death, have become entitled to be registered as a citizen of Zambia under
subsection (2) of this section, but whose marriage has been terminated by
death or dissolution before 24th October 1964, shall be entitled, upon
making application before such date and in such manner as may be
prescribed by or under an Act of Parliament, to be registered as a citizen of
Zambia.

(5) An application for registration as a citizen under this section shall not
be made by or on behalf of any person who, under any law in force in
Zambia, is adjudged or otherwise declared to be of unsound mind."

"5. Every person born in Zambia after 23rd October 1964 shall become a
citizen of Zambia at the date of his birth;

Provided that a person shall not become a citizen of Zambia by virtue of

this section if at the time of his birth--

(a) neither of his parents is a citizen of Zambia and his

father possesses such immunity from suit and legal process as is accorded to
the envoy of a foreign soverign power accredited to Zambia; or

(b) his father is a citizen of a country with which Zambia is at war and the
birth occurs in a place then under occupation by that country."

"6. A person born outside Zambia after 23rd October 1964 shall become a
citizen of Zambia at the date of his birth if at the date of his birth his father is
a citizen of Zambia otherwise than by virtue of this section or Section 3(2)
of this Consitition."

The scheme of the Constitution at independence was such that some became
citizens automatically; some became entitled to that status and could register
as of right; while others who were potential citizens could apply to
naturalize. Even the law enacted to facilitate registration and naturalisation
introduced another element of automatic acquisition of citizenship by
adoption: See, the Citizenship of Zambia Ordinance, 1964 (61 of 1964) and
subsequent legislation. The Constitutional provisions at independence
defined a “British protected person” by reference to the British Nationality
Act, 1948, Section 32 of which provided that a British protected person
 171

meant a person who was a member of a class of persons declared by order in

Council to be protected persons by virtue of their connection with the
relevant protectorate, state or territory. The British Protectorates, Protected
States and Protected Persons Order in Council, 1949, gave various instances
of such protected persons including, under Section 9, those born in a
protectorate or a trust territory and those born elsewhere but whose fathers
were born in a protectorate or a trust territory. As will be seen shortly when
we refer to the MOTALA Case, the state of affairs brought about by the
British Nationality Act, 1948 as read with the citizenship provisions in the
instruments which ushered in our independence must be viewed in light of
the pre-existing state of the law on the subject. Viewed in this way, it is
seen that the Legislation of the Untied Kingdom dealing with nationality and
elaborated subsequently begins with the British Nationality and Status of
Aliens Act, 1914. Under that law, there was a common British nationality
for all subjects of the Crown throughout the Commonwealth and Empire
which had grown out of the common law doctrine of allegiance to the King.
As the learned authors of Halsbury’s Laws of England, 3rd ED: vol. 1 point
out in Note (i) at page 528---

“Before 1st January 1949, the terms “British national” and “British
nationality” were generally used to indicate a British subject and the status
of a British subject. In fact, there existed at that time another group of
British nationals, i.e. British protected persons, but in strict law they were
treated as aliens, although they were deemed not to be aliens for the
purposes of any provision having effected by virtue of the Aliens Order,
1920…….......''

The Act of 1948 radically changed the whole of the citizenship law of the
United Kingdom. We have already mentioned the Order in Council dealing
with protected persons which was made under this Act. However, as early
as 1934, there was promulgated the British Protected Persons Order, 1934:
See Government Notice No. 91 of 1934 in the 1934 Government Notices of
Northern Rhodesia, at page 109. The object of that Order in Council was to
define which persons were to “regarded as belonging” to the affected
territories and therefore British protected persons. The persons to be
regarded as belonging included those born in the territory and those whose
fathers belonged by their own birth in the territory. We have previously
quoted Section 16(3) of the 1963 Constitution in which an extended and
more expansive definition of the persons who belonged to Northern
Rhodesia was given. This was long after 1934 and 1948. This was an
 172

expanded list of the persons – to use the language of the recitals in the 1934
Order in Council – regarded as belonging to the territory and who were
afforded Her Majesty’s protection and were known as British protected
persons.

The Zambian citizenship provisions at independence were considered in the

Court of Appeal as well as in the House of Lords in the MOTALA case
reported respectively in (1991) 2 ALL E.R. 312 (CA) and 1991) 4 ALL E.R.
682 (HL). The claimants Safiya and Farug Motala were born in British
Protectorate of Northern Rhodesia. Their parents were Indian citizens born
in Gujerat who married at Fort Jameson (now Chipata) in Northern Rhodesia
in July, 1950 and brought up a family of eleven children there. Their father
had gone to live in Chipata in 1946 and had carried on a successful business
as a trader until he went to live in Manchester, England, shortly before he
died in 1984. The father applied to become a citizen of the Untied Kingdom
and Colonies by registration. It was granted to him on 13th February, 1953,
at Lusaka by a certificate signed by the Chief Secretary of the Government
of Northern Rhodesia. Subsequently, Mrs. Motala also registered as a
citizen of the United Kingdom and Colonies. The two claimants were
citizens of the United Kingdom and Colonies by descent at birth under
Section 5(1) of the British Nationality Act 1948 because their father, who
had been born in India, had already become a citizen of the United Kingdom
and Colonies by registration in Northern Rhodesia. In 1979, the claimants
were refused United Kingdom passports on the ground that they were not
citizens of the United Kingdom and Colonies and were in any case
illegitimate because their parents’ marriage was not valid. In 1983, they
applied successfully for a declaration that they were legitimate and that they
were citizens of the United Kingdom and colonies. The Attorney General
appealled, contending that although the claimants had been entitled to
citizenship of the United Kingdom and Colonies by descent they had also
been British protected persons as defined by the 1948 Act and therefore by
virtue of Section 3(3) of the Zambia Independence Act 1964 and Section
3(1) of the Constitution of Zambia which was scheduled to the Zambian
Independence Order, 1964 they had lost their status as citizens of the United
Kingdom and Colonies by descent on 23rd October 1964, the day before
Zambia became independent, and had become citizens of Zambia on
Independence Day, 24 October 1964. The Court of Appeal reject the
Attorney General’s contention, holding that under the 1948 Act the status of
a British Protected person and that of a citizen of the United Kingdom and
Colonies were inconsistent and mutually exclusive so that a person could not
 173

be both at the same time. Accordingly, the claimants were not British
protected persons immediately before Zambia’s independence and, in the
absence of express provision in the 1964 Act, they did not become Zambian
Citizens on Independence Day but retained their status as citizens of the
United Kingdom and Colonies. The Court of Appeal simply considered the
language of section 3(3) of the Zambia Independence Act 1964 and section
3(1) of our Independence Constitution and proceeded to construe it in light
of the 1948 Act and the British Protectorates, Protected States and Protected
Persons Order in Council 1949. They looked at the law against the
background of the common law which traditionally considered protected
persons to be aliens and held that it was not necessary for the draftsman to
state in the 1948 Act that a citizen of the United Kingdom and Colonies was
not and could not at the same time be a British protected person. This was
considered to be implicit in the law. The Court of appeal upheld the trial
judge’s finding that the claimants had become British Overseas Citizens.
The Attorney General took the matter to the House of Lords and was
rewarded with success. Their Lordships held that although the status of a
British protected person was different from that of a citizen of the United
Kingdom and Colonies, the one status was not inconsistent with the other
and therefore a British protected person did not cease to be such on
becoming a British subject. The claimants were from their birth in Northern
Rhodesia until Zambia became independent both citizens of the United
Kingdom and colonies by descent under Section 5(1) of the 1948 Act and
British protected persons by virtue of Section 32(1) of that Act, read with
Section 9(1) of the British Protectorates, Protected States and Protected
Persons Order in council 1949, and therefore by virtue of section 3(3) of the
1964 Act they ceased to be citizens of the United Kingdom and Colonies
and became citizens of Zambia on 24th October 1964 under Section 3(1) of
the Constitution of Zambia.

The question in the MOTALA case was whether the claimants were British
protected persons who became Zambian citizens under section 3(1) of the
Constitution or if, inspite of the wording of section 3(3) of the Zambia
Independence Act 1964 they continued to be citizens of the United Kingdom
and Colonies by descent. The question was also whether the status of a
protected person and an overseas citizen were mutually exclusive. The
House of Lords considered the common law and the pre-existing law in
order to construe the 1948 and 1949 legislation in the proper context and to
demonstrate that the Court of Appeal had misapprehended the common law
position which preceded the 1948 Act precisely because it did not attempt to
 174

look at the pre-existing law. We can do no better than to quote from the
leading opinion of Lord Bridge from page 685 where he said:

''Hence the critical question is whether from birth until 23rd

October,1964, they each had the dual status of citizen of the United
Kingdom and Colonies and British protected persons or whether, under the
1948 Act, that was an impossibility.

Before addressing that question I must say at once that the courts
below were denied the advantage which your Lordships have enjoyed of
being referred to J Mervyn Jones British Nationality Law and Practice (1st
edn. 1947), which is a valuable source of information with respect to the
status of British protected persons at common law, or to the British
Protected Persons Order 1934, SR & 01934/499, which shows how the
status was treated in previous legislation.

As an inevitable consequence the Court of Appeal approached the

issue which arose on the construction of the 1948 Act and the British
Protectorates, Protected States and Protected Persons Order in council 1949,
SI 1949/140, made under the 1948 Act, without reference to their proper
context.

As will appear, when construed in the context of the pre-existing law, the
1948 and 1949 legislation wears a very different aspect.

Mr. Mervyn Jones’ book is a most useful starting point. It appears to

have been the first comprehensive textbook on the subject matter of its title.
It carries a foreword by Mr W E Becket, who was then the legal adviser to
the Foreign Office Apart from giving the work his laudatory imprimatur, Mr
Beckett points out that;

‘in the field of British Nationality law very few cases have ever gone
to the courts at all, whereas a very large number of problems have
confronted the two Departments of State, the Home Office and the Foreign
Office, and have been dealt with administratively.Mr Mervyn Jones has been
able to see the papers of these two departments where cases of interpretation
have arisen. Not being an official, he has been entirely free to form his own
judgement upon them, and in fully exercising this freedom, he has shown
his own qualities as a scholar and as a lawyer.
 175

This inspires confidence that the ensuing text accurately reflects both
contemporary practice and accepted contemporary opinion in matters of
nationality and status.''

The most significant passage from the text, for present purposes, appears
where the author states (p279):

''It may often happen that a person may be, at one and the same time,
both a British subject and a British protected person. for instance, a number
of British subjects also possess Palestinian citizenship. There are a large
number of people from India who are, at one and the same time, British
subjects by virtue of their connection with British India, and British
protected persons by virtue of connection with some Indian state. It is a sort
of domestic double nationality.

In many territories under British protection, eg the Indian native

states, the several states in what is now Malaysia and the protected states on
the shores of the Persian Gulf, the question who was entitled to be regarded
as a British protected person was determined by the local law in the sense
that whoever was recognised as a subject of a protected state was also
recognised as a British protected person.''

But, as Mr Mervyn Jones points out (at p 294) in the British protectorates,
being:

''territories mainly in Africa where there is no native ruler……... the

rules defining who can claim the status of a British protected person, by
virtue of their connection with protectorates, have to be laid down by the
British Crown.''

It was for this reason that the British Protected Persons Order 1934 was
enacted. The territories to which the order applies are the British
protectorates, including Northern Rhodesia, and mandated areas set out in
the schedule. The order recites:

''………And whereas certain persons who are regarded as belonging

to those territories are afforded His Majesty’s protection, and are known as
British protected persons: and whereas it is expedient to define in relation to
those territories the persons who are so regarded as belonging thereto…….”
 176

Again, after dealing with various aspects of the decision in the Court of
Appeal, Lord Bridge continued, at pages 688 to 689:

“The 1948 Act came into force on 1 January 1949. The British
Protectorates, Protected States and Protected Persons Order in Council 1949
and the order in council revoking the British Protected persons Order 1934
were made on the same day, 28 January 1949. The draftsmen of the new
legislation must have been perfectly familiar with the pre-existing law and,
if it had been intended that henceforth British protected persons could not at
the same time be citizens of the United kingdom and Colonies and vice
versa, it is inconceivable that this would not have been made clear in express
terms, in the same way as it was made clear in express terms that henceforth
British protected persons would no longer be aliens.''

Even if there was an ambiguity in the 1948 Act, there is available one further
aid to its construction which was not brought to the attention of the Court of
Appeal. Your Lordships are indebted to Mr Collins, whose industrious
research unearthed a relevant provision in the Solomon Islands Act 1978;
which he very properly brought to the attention of Mr Holman, Q.C., who
naturally relies on it. It is s4(1),
which provides:

''A person who immediately before Independence Day is a British

protected person by virtue of his connection with the Solomon Islands
protectorate;

(a) shall cease to be a British protected person on that day if he then

becomes a citizen of Solomon Islands or is then a citizen of the United
Kingdom and Colonies….''

This provision clearly assumes that prior to Independence Day there may be
some Solomon Islanders who are both British protected persons and citizens
of the United Kingdom and Colonies. In the words of Lord Sterndale, MR,
in Cape Brandy Syndicate v IRC (1921) 2 K.B. 403 at 414, approved by
your Lordships’ House in Ormond Investment Co Ltd v Betts (1928) A.C.
143 at 156 (1928) ALL E.R. Rep 709 at 715-716:

''I think it is clearly established in Attorney-General v.Clarkson (1900)

1 Q.B. 156) that subsequent legislation on the same subject may be looked
to in order to see what is the proper construction to be put upon an earlier
 177

Act where that earlier act is ambiguous. I quite agree that subsequent
legislation, if it proceed upon an erroneous construction of previous
legislation, cannot alter that previous legislation; but if there be any
ambiguity in the earlier legislation then the subsequent legislation may fix
the proper interpretation which is to be put upon the earlier. Hence, if the
1948 act were ambiguous on the point in question, s.4(1) of the Solomon
Islands Act 1978 would resolve the ambiguity.”

We consider the House of Lords’ decision as ample persuasive authority for

having taken the expedition into the history of the instruments of the
constitutional developments in this country. In context, therefore, the people
said by the 1963 Constitution to “belong” to Northern Rhodesia were all
British protected persons by virtue of their different kinds of connection with
Northern Rhodesia. The legislation of 1963 being subsequent to 1948 and
1949 threw considerable light on the question of British protected persons
by virtue of their connection with Northern Rhodesia and hence who became
citizens. Using the House of Lords’ approach, we are quite satisfied that
belonging to Northern Rhodesia on any ground listed in the 1963
Constitution constituted the necessary connection for one to be a British
protected person to that the non-repetition or specific mention of each and
every category of the 1963 British protected persons in the 1964 legislation
did not result in any lacunae so as to deprive the affected of their right to
claim citizenship of Zambia or of the United Kingdom and Colonies as the
case may be.

In light of the law discussed, the respondent “belonged” to Northern

Rhodesia and was clearly a British protected person whichever biography
out of the several proposed is or were to be adopted. In light of the law,
therefore, the respondent’s own citizenship cannot be in any doubt. He is a
Zambian citizen. It must be stressed and sight should not be lost of the real
issue here which is the citizenship of the respondent himself which cannot
be affected by being born at Chibambo, if that is where he was born. As
already shown, it was not solely one’s own birth within Northern Rhodesia
which resulted in “belonging” and being a British protected person. The
contention in the petition was that if he was born at Chibambo he would be a
foreigner: The law says otherwise, as already discussed. In the event, we
are of the considered view that it would be idle, otiose and pointless to make
a positive finding as to where the respondent was born although we note that
the preponderance of the evidence of the available official records favours
Kitwe.
 178

The next question is who are or were his parents? a number of other
questions arise such as whether the Constitution is concerned with legal or
biological parents and whether in the event of a person being legally
fatherless or illegitimate such a person is not entitled to become the
President. Other questions arising include whether parents born before
independence can be regarded as citizens of Zambia by birth or descent or if
the provision should be construed as including only the parents who are or
were literally Zambians by birth or descent (none of whom would be older
than our independence so as to have any child of not less than 35 years old
as required for presidential candidates).

We begin with the evidence. From the evidence given, there was no dispute
who the mother of the respondent was, namely the late Daina Kaimba
Mulaye of Musangu Village. The evidence has shown that the she belonged
to that village and to Northern Rhodesia and she would, but for her prior
death, have become a citizen of Zambia at independence. Three fathers have
been proposed for the respondent in the evidence before the court and the
question is: was it (a) PW3; (b) Jim Zharare Nkhonde or (c) Jacob Titus
Chiluba Nkonde? In favour of PW3 Luka Chabala also known as Kafupi –
“the short one” – was firstly PW3 himself. He laid his claim with much
conviction and gusto. Then there was PW4 Mr. Ngosa a relative of the
respondent who harboured undisguised bitterness and who fared very badly
in the witness box. He was discredited and we found his evidence to be
unreliable. It can not be resorted to in order to afford support to PW3. Then
there was PW13 Mr Kasuba whose evidence on the point was all multiple
hearsay and inadmissible. Next was PW14 Mr. Banda who claimed that the
respondent himself told him in 1962 in Mufulira that his father was a
Zairean called Kafupi who had other children in Zaire and that his home was
in Zaire. He said the respondent spoke Lingala, a typical Zairean language,
thereby suggesting that the respondent associated with or was brought up by
or among Lingala-speaking folk. Mr Banda’s evidence was in sharp contrast
with that surrounding the respondent’s educaion and that of PW3 himself
who was either working on the Copperbelt or living in the villages in
Luapula province and had all his children in Zambia. While it is quite
possible that PW14 knew the respondent and even kept him and procured
the employment he had as a bus conductor with C.A.R.S., we gained the
distinct impression that he was overly keen to embellish and colour his
evidence, especially on the issue of the respondent’s paternity.
 179

The other witness to support PW3 was PW28 Mr. Kakonde. However, his
evidence on the point was patently hearsay and, as already observed, he was
in any case thoroughly discredited and not credible. Again as already noted
when we recited a digest of the evidence, there was the inadmissible hearsay
evidence of PW29, Mr Musonda. PW34 Champ Thom Musendeka the
schoolmate, said he had heard that PW3 was the real father. This was
obviously hearsay. There followed the evidence of PW51 Mrs. Chikonde
who was not a credible witness and was contradicted by PW34. It was she
who alleged that the respondent (then known as Titus Mpundu) had himself
said his father was Kafupi Chabala when the respondent and her brother
were expelled from school. Her allegation that her father gave the
respondent transport money after the expulsion conflicted sharply with the
account given by PW34 who said that the Headmaster delivered them to
their homes in his vanette. Again, we have already commented upon the
evidence of PW102, Mr Mumba, which was all hearsay. The position
therefore is that PW3 largely stands alone with any kind of direct evidence,
with no or very little support mainly of the hearsay type from the relatives
and acquaintances. We now turn to the evidence in favour of Zharare
Nkhonde, of Mozambican origin. The evidence given by PW7, Mr Mark
Chilekwa and his sister PW32 Mama Anna Chilekwa was agreed that they
lived in Wusakile and came to know the respondent and his father. The auto
biography of the respondent agrees that he lived in Wusakile. These
witnesses put the period at 1955 to 1959. We have also noted the similarity
between the name Nkhonde (with an “h given by PWs7 and 32 and the name
Nkonde (without an “h”) given by the respondent himself at his nomination
as a presidential candidate. In a general way, PW80 Mr. Chaziya was in
support of the father being of Mozambican origin and known as Jim Zharare,
without any other surname. It was PW80 who described how Sixpence and
Zharare had worked at Bwanamkubwa and then transferred to Mufulira;
thence to Chambeshi for two years until the mine collapsed thence back to
Mufulira Mine where he found them in 1954. It was a notorious fact that
Mufulira Mine – and Luanshya Mine suggested by PW4 – used to belong to
Roan copper Mines Limited while Nkana – Kitwe used to belong to what
was then Nchanga Consolidated Copper Mines Limited, before the
companies merged in the seventies to form the Zambia Consolidated Copper
Mines Limited. We were troubled by some aspects of the accounts relating
to Mufulira and Kitwe which we found difficult to reconcile. Quite apart
from the unlikelihood of transfers of miners between different companies
those days, there was the timing of the events in Mufulira and Kitwe; the
surnames used; and the claim by PW80 that Titus Zherera was the survivor
 180

of twins who were both male. The evidence relating to Kitwe was in
agreement and tallied with other evidence that the respondent lived in
Luapula where he was attending school, coming to Kitwe only during the
school holidays. In contrast, PW80 suggested that the respondent and his
father were living in Mufulira.

The evidence in favour of the respondent’s father being Jacob Titus Chiluba
Nkonde came from the published biographies and also from the documents
which were produced by the witnesses, such as PW11 Mr. Simpute and
PW12 Mr. Tilasi. There was also support from the documents in the
bundles of documents at the trial. The rest of the evidence of the others, as
already discussed when we summarised their evidence is peripheral.

From the evidence discussed, all the accounts as to which one might have
been the father are quite plausible; but they are irreconcilable. PW3’s
evidence was otherwise quite believable; but so was the version supported
by the Chilekwas and Mr. Chaziya regarding Mr Zharare which was
otherwise also quite believable. Although there was no viva voce evidence
to support the third father named in the official documents, that story too
was plausible and was not positively discredited. In the absence of an
affirmative case in support of a specific father, the petitioners finally urged
that PW3 be found to be the father and proposed – without any evidence to
support the linkage – that it be taken that the respondent was the illegitimate
son of PW3, the product of an illicit affair while the respondent’s mother
was married to a Mozambican who brought him up. Assuming PW3 to have
been the biological father but without making any finding to that effect, what
would be the position? Would the respondent have been unqualified to
stand on account of the citizenship of the presumed father? In other words,
is PW3 a Zairean (or now Congolose)? PW3 testified that his parents settled
in Northern Rhodesia and he was born in the Congo as it were by accident of
circumstance when his mother visited a sick relative. The birth in that
country would have the same flavour as the mothers in the border areas of
this country who had to resort to Chibambo Mission Hospital which was
grant-aided by the Northern Rhodesian Government. Their children did not
cease to belong to Northern Rhodesia where they themselves belonged. The
case proceeded on the assumption that PW3 who is otherwise a Zambian
with a Zambian National Registration Card had a village where his own
parents become a foreigner by birth in the then Belgian Congo. We have
already dealt at great length with what will be the consequence had the
respondent infact being born in Chitambo in the Congo. The reasoning and
 181

the law which we set out in relation to the respondent’s position applies with
equal force PW. By law, he belonged to Northern Rhodesia and was British
protected person born of parents – to lift an expression directly out of the
1963 Constitution – “who at the time of his birth were ordinarily resident in
Northern Rhodesia.” One of the counsel for the petitioners submitted that
PW3 became a Zambian by registration – if we understood correctly – under
the National Registration Act. This Act is concerned with the registration of
all persons in Zambia who are over 16 years of age and whether they are
Zambians, commonwealth citizens or aliens. It is not the Act for obtaining
citizenship by registration for which a separate Act exists. The fallacy of
assigning citizenship by registration for which a separate Act exists. The
fallacy of assigning citizenship by registration to PW3 is self-evident. But
in fact, by operation of law as already demostrated he became a citizen at
independence so that if the law in the constituion were concerned with
natural or biological parents, and if he were the father as he claims, the
respondent would not have been disqualified.

We did pose the question whether the Constitution had in contemplation

biological parents or legal parents. The citizenship law at independence
traced its roots to the British legislation on the subject and if such legislation
is resorted to, one finds that the law is concerned with legitimate. Thus, for
example, Section 32(2) of the British Nationality Act 1948, provides as
follows:

"32(2). Subject to the provisions of section twenty-three of this Act, (which

considered the position of children legitimated by the subsequent marriage
of their parents) any reference in this Act to a child shall be construed as a
reference to a legitimate child; and the expressions “father ", "ancestor" and
"descended" shall be construed accordingly."

The words in brackets are ours. Again, if the respondent were a non-marital
child or filus nulius - to use an obsolete latin expression - the legal position
appears to have always been that such a child has derived domicile and
personal status through the mother. On the facts of the case at hand, that is,
if the case were that the respondent was the illegitimate son of PW3 but
brought up by the legal parents, he would undoubtedly have been considered
to be a marital child - see for instance, the Affilliation and Maintenance of
Children Act, CAP 64 of the 1995 edition of the Laws of Zambia. The
parentage qualifications indeed raise a number of questions. For instance, it
was suggested in the submissions that the reference to parents who are or
 182

were Zambians by birth or descent was intended by the legislature to

disqualify those who are not indigenous. As we have pointed out in a
number of cases in the past - for example in Samuel Miyanda v Raymond
Handahu S.C.Z. Judgment No. 6 of 1994 - the fundamental rule of
interpretation of all enactments to which all other rules are subordinate is
that they should be construed according to the intent of the parliament which
passed the law. Such intent is that which has been expressed and when the
language used is plain and there is nothing to suggest that any words are
used in a technical sense or that the context requires a departure from the
fundamental rule, there would be no occasion to depart from the ordinary
and literal meaning and it would be inadmissible to read into the terms
anything else on grounds such as of policy, expediency, political exigency,
motive of the framers and the like; see also Capper v Baldwin (1965)2
Q.B.53 by Lord Parker, C.J., at page 61. Accordingly, it is not possible to
read the provisions as requiring or permitting only the indegenous sons and
daughters who belong to one of the tribes native to Zambia and who have a
village and chief in Zambia. Applying the fundamental rule, the provision
would not disqualify for example a person born in Northern Rhodesia or in
present day Zambia 35 years ago of Chinese parents (say who died) who has
since been adopted by Zambian parents who are Zambian by birth or by
decent; See for instance the automatic acquisation of citizenship by adoption
introduced by section 3 of Ordinance 61 of 1964, that is the citizenship of
Zambia Ordinance which read:

"3. A child adopted, on or after the commencement under the

provisions of any law relating to the adoption of children shall, if he was not
a citizen at the date of such adoption, become a citizen by adoption on the
date of that adoption if the adopter, or, in the case of a joint adoption, the
male adopter, was at the date of the adoption a citizen.”

(Now see s. 11 CAP 124 of the 1995 Edition of the Laws)

In the not too distant future, there will be second and third generation
Zambians descended from ancestors who originated from a variety of
continents and countries all over the world which ancestors are now
"disqualified" Zambians. We have also pointed out a number of other
questions which arise, including whether or not "biological" parents were
intended and whether or not persons who were or are non-marital children
are thereby excluded. We consider that the point has to be made that the
parentage qualifications introduced into the constitution in 1996 pose a
 183

number of apparently solutionless problems and difficulties. In giving the

example of the adopted Zambian of Chinese origins, we mean no disrespect
to that great race but illusrate some of the difficulties. We doubt if the
framers of the amendments had these problems in mind. If the aim was to
provide for indigenous presidents only as suggested by counsel, then quite
clearly the language of the amendments actually employed did not and could
not achieve this. Had explicit language to that effect been employed, such
language might conceivably have run the risk of infringing the non-
discrimination provisions in the part of the constitution which is entrenched.
This was not an issue here and we make no finding. However, we should
mention the case of Akar v Attorney -General Of Sierra Leone (1969) 3
ALL E.R. 384 which we considered during our research. In that case, the
appellant was born in 1927 in the former British protectorate of Sierra Leone
of an indigenous mother and a Lebanese father who was born and bred in
Senegal but who had lived in Sierra Leone for the last 56 years, and never
been to Lebanon. On the attainment of independence by Sierra Leone on
27th April 1961 the appellant by virtue of Section 1(1) of the Constitution
became a citizen of Sierra Leone. Act No. 12 of 1962, by Section 2,
purported to amend the Constitution retrospectively to limit citizenship to
persons of negro African descent. This, by the definition of the term
(defined as meaning "a person whose father and his father's father are or
were negroes of African Origin")- excluded the appellant. By Section 23 of
the Constitution, laws discriminating, inter alia, on the ground of race, were
prohibited except, inter alia, in cases where a disability imposed having
regard to its nature and to special circumstances pertaining to persons on
whom it was imposed, was reasonably justifiable in a democratic society. By
a majority of four to one, the House of Lords affirmed the Chief Justice of
Sierra Leone and reversed their Court of Appeal by holding that Act No. 12
of 1962 was unconstitutional; it was discriminatory within the meaning of
Section 23 of the Constitution since different treatment was accorded to
different people and the differentiation was attributable to wholly or mainly
to respective descriptions by race. while their Lordships expressly stated
with the wisdom or desirability or fairness of passing such a measure,
nonetheless they commented as follows, at page 393:....

"In view of the conclusions which their Lordships have

expressed they need not refer further to the problems which have been
raised. The circumstances that they are posed... is commentary enough of
the difficulties which have been created by the scheme of legislation which
it was thought appropriate to attempt to adopt."
 184

The comment was rather apt. Another point already dealt with but worth
noting again was the assertion by the petitioner Mrs. Phiri and other
witnesses that there were no Zambian citizens as such prior to independence
and that Zambian citizenship and nationality only commenced on 24th
October 1964. This assertion which we accept as technically and legally
correct means that the constitutional provision regarding parents or anyone
born prior to independence who are or were Zambian by birth or by descent
can meaningfully only be construed as a reference to those who became
Zambians on 24th October 1964 or who would, but for their prior death,
have become Zambians on that day.

To conclude on the question of the respondent's qualifications, we find that

the various accounts as to the paternal parentage were irreconcilable in
consequence of which an affirmative case has not been proved to the
necessary degree of convicing clarity. In the circumstances, there is no basis
for foisting a father upon the respondent nor for finding against the one he
has officially declared. Above all we have already explained how even the
most favourable finding from the petitioners’ point of view would not have
resulted in the respondent becoming unqualified.

ELECTORAL FLAWS

We now turn to the aspect of the petition which related to the election,
including the whole of the electoral process. The issues raised under this
part according to prayers of the petition were that the election process had
been neglected by the Electoral Commission, thereby facilitating fraud and
that the election was rigged and not free and fair, therefore null and void.
The detailed particulars in the petition and the evidence raised issues of (i)
bribery and corruption; (ii) irregularities and (iii) flaws in the electoral
system. Since a presidential election is conducted under the practices and
procedures set out by or under the Electoral Act, cap.13 of the Laws of
Zambia (1995 Edition), this court had determined quite early in the
proceedings that guidance would be sought from that Act on many of the
issues that arose, for example, the grant of indemnities to witnesses. In the
same vein, we had to look to the Act and the Regulations when considering
the issues of bribery and corruption; irregularities; and the flaws. We also
had to borrow from the principles set out in Section 18 of cap.13 which
reads:
 185

“18. (1) No election of a candidate as a member of the National Assembly

shall be question except by an election petition presented under this Part.

(2) The election of a candidate as a member of the National

Assembly shall be void on any of the following grounds which is proved to
the satisfaction of the High Court upon the trial of an election petion, that is
to say:

(a) that by reason of any corrupt practice or illegal practice

committed in connection with the election or by reason of other misconduct,
the majority of voters in a constituency were or may have been prevented
from electing the candidate in that constituency whom they preferred; or

(b) subject to the provisions of subsection (4), that there has been a
non-compliance with the provisions of this Act relating to the conduct of
elections, and it appears to the High Court that the election was not
conducted in accordance with the principles laid down in such provisions
and that such non-compliance affected the result of the election;

(c) that any corrupt practice or illegal practice was committed in

connection with the election by or with the knowledge and consent or
approval of the candidate or of his election agent or of his polling agents;

(d) that the candidate was at the time of his election a person not
qualified or a person disqualified for election.

(3) Notwithstanding the provisions of subsection (2), where, upon the

trial of an election petition, the High Court finds that any corrupt practice or
illegal practice has been committed by or with the knowledge and consent or
approval of any agent of the candidate whose election is the subject of such
election petition, and the High Court further finds that such candidate has
proved that:

(a) no corrupt practice or illegal practice was committed by the

candidate himself or by his election agent, or with the knowledge and
consent or approval of such candidate or his election agent; and
(b) such candidate and his election agent took all reasonable means
to prevent the commission of corrupt practice or illegal practice at such
election; and
 186

(c) in all other respects the election was free from any corrupt
practice or illegal practice on the part of such candidate or his election agent;
then the High Court shall not, by reason only of such corrupt practice or
illegal practice, declare that election of such candidate was void.

(4) No election shall be declared void by reason of any act or omission by

an election officer in breach of his official duty in connection with an
election if it appears to the High Court that the election was so conducted as
to be substantially in accordance with the provisions of this Act, and that
such act or omission did not affect the result of that election.”

The evidence on these issues came from a fairly large number of witnesses.

(i) Bribery and Corruption

Thus, under bribery and corruption can be listed firstly the witnesses whose
evidence touched upon the Sale of Council houses. These were PWs 53, 55,
56, 57 and 27. Then there was evidence touching upon what the Regulations
terms as “treating” in the form of for example the distribution of meat and
grinding mills in the Western Province and salt and cement in Mbala. The
witnesses included PWs 24, 30, 49, 67 and 68. Then there was evidence of
cash gifts given mostly by the witnesses from Chongwe and by some of the
peititioners who complained of Ministers donating money to various causes.
the witnesses under this head included PWs 26, 84, 85, 90 and 91. For the
sake of economy, we summarise the gist only of the evidence of these
witnesses as follows:

PW53 was Mr. Muyakwa of Mongu district Council. He told their

Lordships that, acting on a circular from the Ministry of Local Government,
Council houses were sold at valuation less discounts ranging from 100% for
pre-1959 houses to 20%. In September 1996, the respondent visited and
fixed a maximum of K750,000. Under cross-examination, the court learnt
that the respondent and the MMD candidates came off worst in all the
Mongu constituencies during the elections. PW55 was Mr Chibbonta, Town
Clerk of Livingstone. His evidence was that the Council had already
decided to sell the houses and got permission to sell some and that the
circular from the government was welcome and had better prices. He said
the residents made representations to Lusaka and the houses had to be sold
at the prices determined by the Council which were lower, less discounts.
He informed us that the respondent had visited Livingstone before the
 187

government circular came out. PW56 was Mr. Mumbi, the Solwezi Town
Clerk. He informed us that his council already had a programme to sell
houses in 1995 and sought permission to sell. He said the government
circular of May 1996 resulted in 229 houses being offered for sale, 44 of
them “free” at 100% rebate. Under cross-examination, he informed the
court that the respondent and the MMD infact fared very badly in Solwezi.
PW57 was Mr Ali Simwinga, the Kitwe Town Clerk. He said that the
Council decided to sell its houses as far back as 1993 as the minutes would
show. The Council applied for permission to sell 5% of its 13,500 units and
the Minister gave approval in February 1994. He said that the Council
hoped to expand and develop the City more by selling so that the
government circular was welcomed. by then, 530 units had already been
sold. He said the respondent did not fix the prices; the circular set out the
procedure and rebates. He informed their Lordships that Kitwe City council
persuaded the government to reduce the prices even further below the
circular’s prices. PW27 was Mr. Munga of Zambia National Broadcasting
Corporation who produced and showed us some video tapes. The first tape
showed the respondent opening the MMD Southern Province Conference
and it was not relevant to the issues. The second dated 18 April 1996
showed the respondent touring Council houses in Livingstone when the
respondent was clearly compaigning against UNIP and for himself and his
Party as he indicated there would be discounts. The third date 20 April 1996
showed the respondent on tour of Council houses in Ndola where he even
handed over some Certificates of Title. The fourth tape recorded his tour of
Western, North-Western and Luapula provinces and where he directed
reductions on Council houses and generally held campaign rallies. The firth
was an irrelevant film of 7 March 1991 titled “personalities in politics”. The
sixth and last film was his interview in Kabwe on 6 January 1996 when he
made donations to public causes like the waterworks and also urged people
to register as voters.

On the evidence we are satisfied and it is our finding that programmes for
the sale of Council houses were long already in place and were otherwise
unexceptionable but for the timing of the discounts in an election year. The
exercise was clearly used to assist the campaign. The question we had to
consider was whether the government exercise which was taken advantage
of could amount to the corrupt practice of bribery under Regulation 51 of
the electoral (General) Regulations so as to be caught by the spirit of Section
18 of the Electoral Act, CAP 13. The Regulation has eight paragraphs and
we have read them most carefully but cannot find that the activity
 188

complained of falls within any of those paragraphs. We note also that had
that been the case, it would have been extremely doubtful that the house
sales could have significantly affected the result of the election in a nation-
wide constituency. the results in Mongu and Solwezi where the respondent
fared very badly are quite telling.

With regard to treating . PW24 Mr. Sikazwe, a polling agent for ZADECO,
said that the MMD parliamentary candidate in Mbala was dishing out
cement, salt and cash to the headmen and the villagers and gave some salt to
the witness, urging them all to vote for the MMD candidates. PW30 Mr.
Chituse was the ZADECO parliamentary candidate for the Luampa
Constituency in Kaoma. He testified that the MMD parliamentary candidate
Mr. Manjata was campaigning using a Government vehicle; that he tried to
disrupt a public meeting called by ZADECO. He also said the MMD
candidate used the installation of a public grinding mill to campaign for his
party and to threaten those who would not vote for MMD. He said about six
days before the elections day he found that at one place the people were
feasting on the meat of three head of cattle slaughtered for the occasion by
Mr. Manjata. PW49 was Mrs. Ruth Emelio, the ZADECO candidate for
Sinjembela who testified on this point that the MMD parliamentary
candidate donated a boat to the people on nomination day. He also bought
beers and food and killed an animal to feed the people as they shouted “Vote
for the hand that feeds you!” PW67 was Mr. Muteba, the ZADECO
candidate in Lukulu who testified on the point that the MMD Parliamentary
candidate dished out free meat to the people who began to query what
ZADECO could do for them. PW68 was Mr. Wayoya, an election agent for
ZADECO. He told us on this point that during the campaigns in Lukulu,
only MMD supporters were allowed to use a grinding mill at Kakulanda
Women’s Club. He also told us that a few days before the voting, MMD
killed cattle and dished out free meat, urging the people to vote for MMD
candidates.

From the foregoing evidence, we accept and find that there was treating.
The instances given were proved. We are also mindful of the provisos in the
Electoral Act so that a candidate is only answerable for those things which
he has done or which are done by his election agent or with his consent. In
this regard, we note that not everyone in one’s political party is one’s
election agent since, under Regulation 67 of the electoral (General)
Regulations, an election agent has to be specifically so appointed. We have
borne in mind that the constituency for the presidential candidates is national
 189

and were not satisfied that the treating established may have prevented the
majority of voters in the country from electing the candidate whom they
preferred.

There was evidence of cash gifts being given to some voters, which would
amount to bribery, a corrupt practice. PW26 Mr. Rex Sinkonde was a
ZADECO polling agent at one of the polling stations in Mbala. He informed
us that he caught the MMD Chairlady in the area giving money – amounting
to one pin (one thousand kwacha) – to a voter just outside the polling station
and telling her to vote for the MMD. Then there were allegations of money
being given to some voters by the MMD Councillor a Mr. Kasongo in the
Chongwe area to persuade them to use his pre-marked ballot papers and
surrender their own which they would be given in the polling station. The
witnesses were PW84 Mr. Kabanje, PW90 Mr. Nkalamu and PW91 Mr.
Nyeleti. It transpired that PW90 was a discreditable character and an
outright liar who had posed as Mr. Martin Nkalamu but it turned out that the
fellow’s actual names were Boniface Mwansomeka. The evidence of these
witnesses from the Chongwe area was characterised by improbability,
placing Kasongo in several far distant places at the same time. The most
notable was the pair of PWs 98 and 99 (Mr. Kanyembe and Mr. Lubansa)
who said that Councillor Kasongo drove them and twelve others that
morning from Chongwe to Ngwerere to ghost-vote in fictitious names at a
non-existent polling station. It was highly improbable, in fact clearly
impossible, that Kasongo could have been that ubiquitous. The evidence
from this group of witnesses both as to allegedly voting with Kasongo’s pre-
marked ballot papers and with regard to obtaining national registration cards
and ghost-voting in fictitious names was not credible. PW99 whose
performance collapsed under cross examination had clearly never entered a
polling station in his life. Above all the evidence of PWs98 and 99 rendered
it impossible that Kasongo could have been in Chongwe at distantly located
polling stations waylaying the voters and paying them to use his pre-marked
ballot papers while he was also far away in Ngwerere. The allegations from
these witnesses have not been established satisfactorily or at all. The single
instance testified to by PW26 was insufficient to affect the national election.

There was evidence from some of the petitioners who complained that
various Ministers and the respondent donated public funds to public causes,
which donations were widely reported in the media. The donations have
taken place before the elections, during and since. They continue to date.
We have anxiously examined the Regulations in which various kinds of
 190

conduct or misconduct is prohibited or made an offence. We have tried to

see where the allegation in the petition and in the evidence of various
political leaders donating to community projects might fit in, without
success. The timing of such public philanthropic activity must have had
some influence on the affected voters yet the Regulations are silent on such
matters and on any possibly improper donations when not directed at
individual benefit. As at the present moment, public philanthropic activity is
not prohibited by the Regulations and we can do no more than to urge the
authorities concerned to address this lacuna so that there can be a closed –
season at election time for an activity suggestive of vote buying; including
any public and official charitable activity involving public funds and related
to emergencies or any life-saving or life threatening situations.

(ii) IRREGULARITIES

The irregularities which were canvassed consisted of nine distinct

subcategories which we have identified and which consisted of the
following:

(a) The suggestion that unregistered persons could vote;

(b) Election materials were thrown away or destroyed obviously
to cover up malpractices;
(c) That some voted twice; others even had two identities;
(d) That some election officials at polling stations were partisan
and even allowed wrongful campaigning at polling stations;
(e) That voting procedures were not properly followed;
(f) That results were altered without proper justification or
explanation;
(g) That some people were wrongfully prevented from voting;
(h) That voting certificates were wrongly used and wrongly
issued; and
(i) That pre-marked ballot papers were in use.

As to (a), there was firstly the evidence of PW17 Mr. Meleba who is also
Headman Joshua. He produced a note from the local school headmaster
Muloya who had written urging that those who did not register as voters
could still go and vote if they had national registration cards and were 18
years or more. The witness did not see any unregistered person actually vote,
which would have been illegal. Then there was the evidence of PW44 Mr.
Collins Chimgukuma. He testified that he was one of those who
 191

campaigned for the MMD parliamentary candidate in the Bwacha

Constituency of Kabwe. He said the Kabwe Mayor produced twenty (20)
blank voters’ cards which he used to fill in the names of the witness and nine
other MMD cadres who were each given two voters cards. The witness said
because he was promised some money for doing so he voted twice at two
polling stations despite not being registered. He said he voted only in the
parliamentary election; not in the presidential election. To put it mildly, Mr.
Chimbukuma withered under cross-examination when it was shown that his
name allegedly unregistered friends who allegedly voted twice with him
using fake voters’ cards were in fact duly registered and voted in their proper
polling stations. PW44 was thoroughly discredited. He was effectively and
completely contradicted by the evidence of two of his friends who testified
as RWs 1 and 2. RWI was Mr. Edward Phiri who was actually a registered
voter and who said PW44 was simply a member of an MMD choir during
the election campaigns. RW2 was Mr. Masumba who testified that, contrary
to what Mr. Chimbukuma said, he was duly registered and voted regularly.
The evidence in rebuttal of PW44 was fully corroborated by the evidence of
CWI Mr. Kalale of the Elections Office who produced documents to show
that the persons said by PW44 to have been unregistered were actually duly
registered as voters. In the event Mr. Chimbukuma's story was not
believable and we have rejected it. Finally under this part, there was the
evidence of PWs 98 and 99. PW98 was Mr. Kanyembe of Chongwe who
said that in expectation to be paid K300,000 he and fourteen others who had
neither national registration cards nor voters' cards agreed to be given
national registration cards and voters' cards in the names of fictitious
persons. He said that on polling day, they were driven by MMD Councillor
Kasongo from Chongwe to Ngwerere and there voted in the fictitious names.
PW99 was Mr. Lubansa of Chongwe who testified to the same effect and
also said they were taken to Ngwerere early in the morning. Cross-
examination destroyed him utterly. We have already made reference to the
evidence of PWs 98 and 99 when we were considering the allegations of
cash gifts made by PWs 84, 90 and 91 and when we noted that the two
accounts nullified each other and rendered it highly improbable that
Kasongo was way laying voters at various polling stations in Chongwe and
paying them to use his pre-marked ballot papers while he was also so far
away in Ngwerere. The evidence of these witnesses was discredited and it
can not be believable, In the result, there was no credible evidence to support
the suggestion that unregistered persons could vote and did vote. We find
the irregularity alleged not established.
 192

As to (b), there was firstly the evidence of PW18, Mr. Chita, the
parliamentary candidate for ZADECO in Muchinga Constituency. Acting
on reports received he went to check where a much-delayed truck carrying
election material had parked in the bush. He found a parcel under a Musuku
tree in the bush which contained election materials, including the official
marks and the ballot paper counterfoils for both parliamentary and
presidential elections. These were produced in evidence and estalished
beyond any doubt that in the affected constituency – where most of the
election materials have to date not been delivered to the Elections Office as
required by law – someone threw away these materials in the bush in order
to cover up some wrongdoing and a fiddle of some kind. Secondly under
this part, there was the evidence from the Bwacha Constituency in Kabwe
and which came from PWs 40, 41, 42, 54, 63 and 82. PW40 was Mrs.
Febby Ngosa a supporter of Mrs. Nyirongo (PW82) in the Bwacha
Constituency. She told the court that on Monday 2nd December 1996 she
happened to go to the Recreation Club hall and found the returning officer
for Bwacha a Mr. Chintu and two other persons had an open ballot box on
which was written the work “parliamentary”. They were holding some
ballot papers. The witness informed her husband (PW41) about what she
had seen and he informed Mrs. Nyirongo. PW41 was Mr Ngosa, a polling
agent for Mrs. Nyirongo and he relayed to her what his wife had reported.
His other evidence was that there were election monitors from FODEP and
ZIMT at the polling station where he was on duty on election day. The
presiding officer stopped the FODEP monitor from crossing out the names
being called out from his copy of the register. Other than that some MMD
cadres wore T-shirts with campaign material on them within the prohibited
radius of the polling station, he saw nothing wrong with the voting or the
counting at his polling station. However, at the place for the tallying of all
the votes, the returning officer, was making alterations to all the results
brought to him. Another odd circumstance which he observed was that the
parliamentary box from one polling station strangely took five hours to
arrive at the counting hall. PW42 was Mr. Chisha, another polling agent for
Mrs. Nyirongo. At the polling station where he was, the presiding officer
refused to allow the polling agents to sit close to the table where the count
took place with the result that they did not properly witness the count by the
presiding officer who was miscounting Mrs. Nyirongo's votes. This evidence
did not touch upon the election of the respondent as such. PW54 was Pastor
Jim Nyirongo, the husband of PW82. He testified that the returning officer
Mr. Chintu was altering all the results when he received them from the
polling stations, as the MMD cadres were openly boasting of having played
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their cards well. Subsequently, the returning officer was caught opening
ballot boxes and burning some ballot papers. A report was made to the
police. PW63 was Mrs. Edith Banda who said she was a pre-school teacher.
She told the court that the returning officer for Bwacha and other officials
opened the ballot boxes, sorted out the ballot papers and asked her on 25
November 1996 to burn some ballot papers which were in a carton box and
which were for both parliamentary and presidential elections. PW82 was the
woman of God Pastor Gladys Nyirongo.

The upshot of her evidence was that she was an independent candidate in the
parliamentary elections for the Bwacha constituency. She said that the
election officials in that constituency altered the results from the polling
stations allegedly in order to balance but they were later caught destroying
some ballot papers for both the presidential and the parliamentary elections
and this was after she had already lodged an election petition. When she
confronted the returning officer, he pleaded for mercy and forgiveness. She
reported these happenings to the police.

Related to the foregoing was the evidence of two witnesses called on behalf
of the respondent. RW4 was Mrs. Chikoti of Kabwe Municipal Council
who produced a file on PW63 showing that she was a general cleaner and
not a preschool teacher at the Council’s nursery school as she had claimed.
RW5 was Mr. Mwale also from the Kabwe Municipal Council who was
mentioned as one of the persons who were with the returning officer when
destroying some papers. He was an Assistant Returning Officer for Bwacha
under Mr. Chintu. He denied ordering PW63, a general worker and others to
burn any ballot papers saying that he had only asked them to clean up the
hall which was littered with scrap paper and to burn the litter. These were
papers used to compute the results and torn posters. He told the court that a
verification of ballot paper accounts was duly done from 12 to 30 December
1996 during which the papers were physically recounted to see if there was
any overcounting or undercounting from the polling stations. He denied the
allegations by PWs 40, 63 and 82 that ballot papers were being sorted out
and burnt. He conceded that the official results which were published and
reflected in the official documents which were exhibits before the court and
which showed that there were no rejected ballot papers in Bwacha were
false.

We have considered the evidence from Bwacha Constituency. The records

of the verification of ballot paper accounts referred to by RW5 were
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nowhere to be found. It should also be noted that he described a rather

strange way of conducting the verification when there is Regulation 47 in
the Electoral (General) Regulations which sets out what ought to be done.
In our assessment of the evidence, we find that we are persuaded by the
combined weight of the petitioner's witnesses' evidence the substance of
which had a distinct ring of truth to it. Mr. Chintu did destroy some papers
obviously in an effort to cover up a fiddle. No wonder the results in the
official documents were described by RWS as false. We will consider the
consequence of this finding after we have discussed the other irregularities.

As to (c), that is regarding some voting twice or even having two identities,
we heard evidence from PWs 19,22, 44, 75, 78, 79 and 81. PWI9 informed
the court-and there is no reason to disbelieve her - that she was properly in
possession of a national registration card in the names of Theresa Kalo but
that in 1995 she got a second national registration card while posing as a
much, younger person by the name of Evelyn Mutale. She registered as a
voter twice using the two national registration cards and actually voted twice
using the two sets of documents. She said that she had registered twice at the
request of the MMD constituency Chairman for Mandevu and that she had
decided to come forward and testify because the rewards promised by the
MMD official did not materialise. PW22 was Mr. Musonda from the
Elections Office. He confirmed the assertion made by PWI and others about
a Mr. Zgyambo: The official documents showed that Zgyambo registered
three times in three different places and was in three registers. He actually
voted twice. PW22 explained that the Electoral Commission had authorised
the issue of voters' cards to two or three people having identical national
registration card numbers provided some other detail was different, such as
name or date of birth or an address. Zgyambo exploited this and it is a matter
to which we will return later when we come to consider some of the flaws in
the system. Next, there was PW44 Mr. Chimbukuma whose evidence we
have already discussed and discounted. PW75 was Mr Munamwela of the
Lima Party. He testified that four MMD officials were caught having been
allowed to vote twice each by the presiding officer at one of the Bweengwa
polling stations. He was supported by PW78 Mr. Miyanda who was the
election agent for the Lima Party candidate in Monze. He said at that
polling station three people were apprehended who had voted twice. The
presiding officer even apologized. The matter was reported to the police.
PW79 Mr. Moonga was the polling agent for the ZDC candidate at the same
polling station. His evidence was the same as that given by PWs 75 and 78
saying that some MMD chaps were caught having voted twice each; at first
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using their voters’ cards and later using voting certificates. PW81 Mr.
Hampondo also testified to the same event. He said that at Bweengwa three
people were caught voting twice: in the daytime with a vote’s card and at
night with a voting certificate.

The instances of double voting were well proved. In the case of PW19, it is
understandable that the dishonest could device this method of cheating by
posing as two different persons. In the case of Zgyambo, a decision of the
Electoral Commission facilitated the fraudulent multiple registration and
double voting. In the Bweengwa incident, the electoral process was
deliberately massaged by the dishonest voters with full collaboration of a
dishonest and partisan presiding officer. We will consider the consequence
of this finding on the nationwide election later.

As to (d), that is, that some election officials at polling stations were partisan
and allowed wrongdoing, we considered the evidence of PWs 20, 24, 45, 46,
49, 58 68 and the witnesses from Bweengwa whom we have just talked
about. PW20 was Mr. Sinyangwe, the ZDC candidate for Mpulungu
Constituency who said that polling assistant issuing ballot papers would in
the course of explaining to the illiterates keep overstressing on the MMD
symbol and telling the voters they could vote on the clock if they wished
without similar stress or suggestion for the other parties. He also said that
the MMD were allowed to sing and dance and to campaign freely within the
prohibited radius at some polling stations. PW24 of ZDC in Mbala also
testified similarly both in relation to the MMD being allowed to campaign
within the prohibited radius and to the polling assistant issuing the ballot
papers explaining who the candidates were but stressing the desirability of
voting for the respondent’s side. PW45 was Mr. Mwila of Kabwe, a
supporter of the candidate Mrs. Nyirongo. He saw a woman police reservist
and an MMD official using their wrist watches to campaign for the MMD at
and within a polling station. Upon his complaint, the offenders were
expelled from the polling stations by the presiding officer. PW46 Mr.
Kandeke voted at a polling station in Kabwe which was established at a beer
tavern belonging to the local MMD Chairman who sat within the prohibited
radius wearing an MMD campaign T-shirt. He said that the police officers
on duty at that polling station confisticated wrist watches. PW49 was the
ZDC candidate in Sinjembela. She testified that the MMD campaigned too
near the polling station where she voted and at other stations. She said that
at several polling stations some election officers were openly campaigning
for the MMD and describing other political parties in derogatory terms.
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PW58 Mr. Nyemba was a polling agent for ZADECO at Mufuchani polling
station in Kitwe. He said that prior to election day, the MMD candidate Mr.
Newstead Zimba used his official government vehicles on his campaign
tours and in his attempts to disrupt ZADECO meetings. On polling day, one
polling assistant kept on stressing the desirability of voting for the MMD
candidates while an MMD official campaigned on the voters’ queue and was
not stopped. PW68 Mr. Wayoya who was an election agent for the ZDC
candidate in Lukulu spoke of some polling assistants who consorted openly
with MMD officials at campaigns and elsewhere. He told the court that on
election day, one polling assistant did not stamp the official mark on the
ballot papers of all those he knew to be ZDC members and this affected ten
(10) voters out of the over 250 voters at that polling station. Upon
consideration and careful evaluation of the evidence, we are satisfied that
some election officials at polling stations were indeed partisan in an overt
fashion and unfit for election duties. The evidence itself, however, disclosed
that such officials were largely countered by the vigilance of the polling
agents and any other election monitors there may have been. Above all, we
take judicial notice that the Zambian voters are extremely intelligent and
enlightened; only an insignificant proportion can be so fickle as to allow any
official at a polling station to subvert their freedom of choice. However,
with regard to the consequence of the finding on the presidential election,
this we will discuss after we have dealt with all the irregularities.

As to (e), which is that voting procedures were not followed properly, we

considered the evidence of PWs 46, 58 and 97. PW46 who voted at a
polling station in Kabwe established at a tavern belonging to the local MMD
Chairman complained that his voter’s card was not perforated. PW58 who
was at Mufuchani polling station in Kitwe informed the court that of the
nine voting certificates which were issued, some were issued to officials on
election duties who are registered in a different constituency. This was, of
course, quite wrong and contrary to the relevant Regulations. PW97 was
Mr. Sumaili of Petauke who was on duty at a polling station. He told their
Lordships of one registered voter, a lady, who was allowed to vote without
her voter's card. We considered this type of irregularity to have been
insignificant. The instances deposed to by PWs 46, 58 and 97 were not
shown to have been so widespread that the elections could no longer be
considered as having been conducted in substantial conformity with the
lawful procedures.
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As to (f), that is, that the results were altered without proper justification or
explanation there was the evidence of PWs 49, the Bwacha group (including
PW54), PW93 and PW96. PW49 Mrs. Ruth Emelio informed us that her
returning officer had altered her results from one of the polling stations from
80 to 30 and only corrected the records after protests on her behalf. We have
already dealt with the Bwacha group of witnesses who talked of the
returning officer Mr. Chintu routinely altering almost all the results as he
received them from the polling stations. We propose to set out the evidence
of PWs93 and 96 when we come to deal with the flaws in the system but for
the moment mention only that in their analyses, they had identified the
alterations which were made to the results in various places. This related to
the variances between the initial results released by the Electoral
Commission and subsequent results released by the same authority. We are
satisfied that the irregularity contended for was established.

As to (g), which is that some people were wrongfully prevented from

voting, there was the evidence of PWs 50, 67, 75 and 92. There was a
category of voters who could not vote because of various flaws in the system
which we propose to come to when we consider such flaws. However, under
the present subheading, PW50 Mr. James Mulenga Chasaya of Ndola
informed us that despite being duly registered as a voter to vote at Chintu
polling station in Ndola, the officials refused to allow him to vote because
the particulars on his voter's card had faded off. PW67 Mr. Muteba of ZDC
in Lukulu spoke of a polling station where the voting opened late in the
afternoon but closed early, leaving many voters stranded outside. PW75 Mr.
Munamwela of the Lima Party in Bweengwa said that he had seen a 53 years
old voter and a 45 years old voter turned away as being underaged, despite
being on the register. In the course of the hearing, we had asked an official
from the Elections Office who confused that the officials were not allowed
to use their common sense to allow such voters to vote on the basis that they
were registered and their national registration cards showed that they were
not toddlers, as shown on the register. They were needlessly prevented from
voting when the mistake was that of the persons who compiled the register.
We are satisfied that this type of irregularity was established. For
completeness, we should also mention that there were some voters who were
wrongly prevented from voting by some of the petitioners, especially from
the parties that had decided to boycott the elections and had gone further to
collect the voters cards. Thus, PW92 Mr. Lukonde, Deputy Commissioner of
Police, produced 28,000 unused voter' cards which the police had retrieved
from a house in the Chilenje township of Lusaka.
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As to (h), which is that voting certificates were wrongly used or wrongly

issued, there was firstly the general allegation voiced by PW35 Dr. Chongwe
that voter certificates “flew like flies" at the polling stations. Then there was
the evidence of PW58 Mr. Nyemba to which we have already made
reference. His complaint was genuine to the extent that the wrong kind of
certificate of authority to vote was given to the officers on duty, and in some
cases for the wrong constituency. There were only nine certificates issued at
Mufuchani. We have also already dealt with the Bweengwa group of
witnesses (i.e. PWs 75, 78, 79 and 81) whose evidence established that three
or four MMD officials who had already voted during the day time using
their voters’ cards were again issued with voters’ certificates in the evening
to enable them each to cast a second vote. Again there was the evidence of
PW76 Mr. Joseph Tembo, a polling agent for Dr. Guy Scott, the Lima
candidate in Chongwe. His testimony which was fully corroborated by the
registers and the documents in court established that three people were
wrongly allowed to vote at his polling station using certificates of authority
to vote when they were not on official duties there; and in the case of one of
them, when the person was a voter in Rufunsa which was a different
constituency altogether. Then there was the evidence of PW31 Mr.
Kabinda, the election agent for Mr. Pikiti the Lima Party parliamentary
candidate in the Munali Constituency of Lusaka. Mr. Kabinda complained
that there was misuse of the certificate of authority to vote at a polling
station and the voting certificate. He said that some voters were even filling
in their own certificate and they were allowed to use the certificate to vote
obtained on the very voting day instead of at least four days before election
day as required by the regulations. On the latter point other evidence
received in the case from the officers of the Elections Office showed that the
Electroral Commission had authorised the issue of certificates even on the
polling day in order to counter the boycott and the burning of boters’ cards
by the United National Independence Party. PW31 said that his candidate
was trounced so badly that he the witness wept. CW1 Mr. Kalale of the
Elections Office was called to open the marked registers for Munali when it
transpired that there were relatively only a few voting certificates. They
were not as rampant as PW31 had alleged. In fact, it turned out that some
people who got them were bona fide registered voters who were otherwise
entitled to vote while others were officials on elections duties. The Court
learnt from CW1 that the Electoral Commission allowed certificates to be
issued up to 10% of the total registered voters which was in the case of
Munali up to 4,300 although only 135 certificates were actually used in the
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constituency. This we consider was an insignificant number. In the case of

the Munali Constituency, a verification exercise ordered by this court and
carried out by the Registrar of the High court in the presence of the
advocates for the parties established that only 135 voters’ certificates were
completed and used. The marked registers for two of the Munali polling
stations were not available at the verification, otherwise for the remainder it
was established that the total number of names cancelled in the marked
registers was 23,377 while the total number of ballot papers actually used for
the constituency was found to be 25,388. We are satisfied that in the
examples given and most probably countrywide as well, certificartes did not
fly like flies; they were used in moderation and in all instances well within
the range of quantities acceptable to the Electoral Commission. There was
thus no rampant misuse of the voting certificates and therefore it can not be
said that the respondent was in anyway unduly assisted to win through the
use of voting certificates.

As to (I), which is that premarked ballot papers were in use, there was firstly
the evidence of the Chongwe group of witnesses who alleged that MMD
Councillor Kasongo waylaid them and gave them pre-marked bsallot papers.
We have already dealt with their evidence which we have discounted as
unbelievable. This is the group which included PW90 Mr. Nkalamu who
was actually Mr. Mwansomeka testfying under a fictitious name. Then there
was the evidence of PW60 Mr. Katunasa, ZDC parliamentary candidate in
the Chembe Constitutency. He told the court that acting on a report he had
received and with the help of a police officer who was on duty at one of the
polling stations, he chased and caught an MMD gentleman who had a bag
containing 350 pre-marked presidential ballot papers. The police took those
papers. At another poliing station, he found that his younger brother who
was his agent had been in a fight with some MMD gentlemen from whom he
had confiscated eight premarked presidential ballot papers. He said the eight
ballot papers were kept by his younger brother. The younger brother was
not called to testify and this court has not been shown either the eight or the
three hundred and fifty premarked papers as none were produced in
evidence. The non-production of at the very least the eight ballot papers
said to have been in the custody of PW60’s young brother detracted quite
considerably from his credit, rendering his story to be unbelievable.

Some of the irregularities which we have found to have been established by

the evidence were quite serious, though not widespread. They revealed that
there were those who were prepared by dishonest means to massage the
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elections, oblivious of the risk that the elections might thereby be nullified to
the disadvantage of the candidates who might themselves have been quite
innocent and free of any personal wrongdoing. On a perusal of the whole of
the evidence reviewed under this part, we have not found any evidence that
the respondent personally or by lawful electoral agent was privy to the
irregularities and malpractices described. In the event and having regard to
the type of constituency concerned, which is nation-wide , it was not
established to our satisfaction that the proven irregularities were such that
nationally the majority of the voters were or may have been prevented from
electing the candidate whom they preferred or that the extent, frequency and
nature of the irregularities was such that they must have affected to any
significant extent the national result of the election. It is clearly not possible
to hold that by reason of the irregularities the result of the election
nationwide was not substantially the true reflection of the free will and
choice of the voters who went and cast their votes.

(iii) FLAWS

This brings us to the flaws in the system. From the evidence, we identified
that there were raised or alleged some flaws associated with (a) national
registration cards (b) voters cards (c) the registers (d) the polling districts (e)
the siting of the polling stations and (f) the results.

(a) NATIONAL REGISTRATION CARDS

As to (a), that is national registration cards, we considered the evidence of

RW3, PW22, CW1 and also PWs93 and 96 who analysed the registers.
Apart from RW3, the other witnesses covered other aspects apart from the
question of national registration cards and it is perhaps more convenient to
set out the precis of all their other evidence at this point in time. RW3 was
Mr. Mwiinga from the National Registration Department. We learnt from
him that the problem of the same national registration card number being
held by two persons surfaced in 1988 when registration forms were printed
which bore old or repeat numbers which were pre-printed on the forms.
There were shown to the court examples of sets of forms printed by the
Government Printer which contained numbers which had already earlier
been issued to other citizens. Apparently, the department even ignored the
district codes when issuing a repeat booklet. Mr. Mwiinga told us – and we
have absolutely no reason to doubt his word – that the situation country-
wide is very bad and that there could be more than 500,000 duplications
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since 1987. The witness told us that, upon a query from the Electoral
commission in 1996, the department deleted the last applicant's name from
the list supplied but as other evidence showed, the Commission itself
decided to keep both sets of persons on the registers.

PW22 was Mr. Musonda from the Elections Office. His evidence which
touched upon the question of national registration cards also dealt with the
other flaws which we will be considering and it is now convenient to
summarise all his evidence at once. In his testimony, Mr. Musonda
described the voters registration process conducted by the Electoral
Commission, including the attempts to correct the mistakes made. He
explained that the Electoral Commission authorised NIKUV who were doing
the data processing to issue voters’ cards to two or three people having
identical national registration card numbers provided some other detail was
different, such as names or date of birth. He also explained that some
registration officers made mistakes in the coding of the polling districts
which necessitated the making of corrections and the issuance of
replacement voters' cards. It was in evidence that because of such
replacements some voters ended up with two voters' cards where the first
card was not physically withdrawn. Mr. Musonda explained that where
corrections were made, the voters could not use the earlier card and could
not vote twice, but only once and in the corrected register. The witness
admitted that massive misplacement of voters occurred due to wrong coding
but that attempts were made to effect corrections. He also readily admitted
that the voters, especially those in the rural areas, may not have heard about
the corrections and they certainly did not read the Gazette notices which
described the polling districts. Mr. Musonda conceded that in the process of
correcting the registers, some voters were put in polling districtsd where
they did not register. In part because of such confusion, some voters never
collected their voters cards. The witness also asserted, and we agree with
him that registration officers and not NIKUV made the errors and that the
inclusion of duplicated national registration cards was a decision of the
Electoral Commission, not NIKUV. We accept Mr. Musonda’s evidence.

CWI Mr. Daniel Kalale of the Elections Office also explained that the
duplicate national registration card cases had been allowed by the Electoral
Commission to remain on the registers, He said there were on the registers
52,703 duplicate national registration cards cases with different names and
9,540 duplicate national registration cards with the same names but different
dates of birth. We also learnt from this witness that they were 33,444 double
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registrations by a person where the decision made by the Electoral

Commission was to leave him or her where he or she registered first. He
further informed us that there were 3,545 duplicates of the same person but
with different serial numbers, a mistake by the assistant registration officers:
The Commission removed one and left one, We accept the evidence of this
witness. CWI also informed us that some Polling districts returned a nil
registration.

From the evidence of Messrs Mwiinga, Musonda and Kalale, it seems to as

that there is a much more serious problem with the national registration
cards than with duplicate voter registrations. We will comment further on
this matter a little later but for the moment we do have to observe that even
the statistics show that we should be really worried about the national
registration cards which was supposed to be but apparently no longer is the
most distinctive and the most reliable means of identifying each other for all
manner of purposes, including elections.

PW93 talked about the national registration cards problem and also covered
all the other flaws to be discussed. It is appropriate to set out the summary of
the whole of his testimony at this stage. PW93 was Dr. Steven Moyo. He
had carried out, on behalf of the petitioners (especially UNIP) a detailed
faulty – finding analysis of the electoral process and found flaws in three
areas, namely the polling districts, the registers and the results. With regard
to the POLLING DISTRICTS, he queried the discrepancies in the official
documents as to numbers of polling districts in 1996 when compared to the
position in 1991. He said that the gazette notices did not reflect all the
polling districts and in any case queried why the Electoral Commission had
chosen to increase the number of polling districts. He informed the court that
his research uncovered the fact that there were nineteen (19) polling districts
which were not reflected in the official electoral documents but which were
in the gazettes while there were sixteen (16) polling districts which were
reflected in the official electoral documents but which were ungazetted. The
witness further informed the court that some polling districts had been
shifted from one constituency to another without the sanction of a
delimitation Commission. He gave the example of ten (10) polling districts
in Ndola which had been shifted farm Chifubu to Kabushi without a
delimitation Commission. With regard to the shifting or non-gazetting or
listing of some polling districts, the witness gave other examples from
Nakonde and Isoka and also from Kabwe and Petauke. His research had
even uncovered two unnamed polling districts in the Southern Province; one
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in Mapatizya and the other in Itezhitezbi. Dr. Moyo also complained that
some polling districts though accounted for were not numbered in logical
serial sequence. He queried the logic of creating so many new polling
districts in some areas of very low voter population.

With regard to the REGISTERS, Dr. Moyo analysed twenty-four (24)

constituencies which were randomly selected. He set out to make a
comparison between the provisional registers and the final registers. He told
us that he carried out a statistical analysis between the provisional and the
final registers and this showed that they tallied. He said he detected a
number of faults and drew our attention to examples in the documents.
These related to omissions of voters' names where for instance only one
name would be given; duplication of voters' national registration cards and
multiple listing of some voters which to him indicated the possibility of
double-voting. The other faults related to misplacement of voters in certain
polling districts and, incomplete particulars against certain voters. The
witness agreed that in some cases, the final registers showed that corrections
had been made though some faults persisted into the final registers.

With regard to the RESULTS, the witness referred the court to a document
containing provisional results and another containing what he termed- the
final results. He drew attention to the altered results as well as to the initial
results which had reflected identical scores for the candidates in various
constituencies. The witness informed us that there were variances between
the provisional and the final results so that the Copperbelt had a variance of
4,857 votes; the Eastern Province 1,185 votes ; Luapula nil; Lusaka
Province 1,741 votes; Northern Province 279 votes; North- Western
Province 64 votes; Southern Province 1,679 votes; and Western Province
1,302 votes. The witness found that the variances totalled country wide
16,788 for the rejected ballot papers and 52,857 for the total votes cast. Dr.
Moyo had truly gone to great lengths to find faults. Thus, he gave examples
of altered results between the provisional and the final results and he gave
the national variance total of 62,037. The witness then drew attention to the
identical results which were initially given. These were the pair of Chipata
and Luangeni Constituencies where the first results were identical but
corrected to different figures in the final results. Then there were the pairs of
Lukashya and Malole; Liuwa and Lukulu West; Kankoyo and Kafulafuta;
and Shiwang'andu with Isoka East. In all cases, the final results reflected
that corrections had been made and the results were now different. The
witness also drew attention to Mansa and said that the votes cast exceeded
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the maximum number of registered voters by 2,000. He also gave examples

of what he considered to be an odd coincidence of the presidential
candidates getting the same number of votes in various places.

All the foregoing was during his examination in chief. PW93, and to lesser
extent PW96, can be credited with provoking and inspiring much of the
distruct of the registers and the electoral processes during the last general
elections. However, when Dr. Moyo was cross-examined he wilted
completely in many respects and had to concede - very graciously we must
say - that many of the major faults he had highlighted were as a result of his
having formed a view on insufficient evidence or inadequate research or that
he had taken a view of the facts which can infact not reasonably be
entertained. Thus , for example, in relation to the polling districts in Ndola
which were allegedly wrongfully shifted from one constituency to another,
Dr. Moyo had to concede when shown the gazettes and the maps that the
polling districts in question were infact PHYISICALLY LOCATED in one
place though inadvertently listed under another in some 1991 Elections
Office documents. The witness very propery admitted that he had seen the
gazettes and the maps and he would not have made the allegation as he had
done. The witness was also shown some gazettes which established that the
allededly ungazetted polling districts were infact gazetted in various
government gazettes containing corrigendar, which Dr. Moyo had not
previously seen. This obliged him to withdraw his earlier assertions. Again,
it was shown to the witness that the allegedly unlisted polling districts were
in fact reflected in various documents, including the gazettes and that the
Electoral Commission bad simply made a few mistakes in listing some
polling districts for one place under another. When it came to the results,
the witness was shown the voter registration figures for Chembe and Mansa
and it was demonstrated that the results were transposed by error so that
there were infact no 2,000 extra votes beyond the maximum number of
registered voters. In the typical fashion of the gentleman that he proved
himself to be, Dr. Moyo graciously conceded this; just as he readily admitted
that there were no pairs of identical results in the results acknowledged as
authentic by the Elections Office. It was also shown to the witness that there
were indeed duplicate national registration cards entries on the registers due
to a decision of the Electoral Commission as well as due to the mistakes of
the Department of National Registration so that different people shared the
same national registration card and registered as voters in different places.
We should mention in fairness that the witness was on firm ground on some
points, such as the fact that in the final registers there were still a few
 205

uncorrected errors of polling districts which had been shifted to the wrong
place, for instance in Mumbezhi..

PW96 was Mr. Phiri of the Post Newspapers who had actively collaborated
with some of the petitioners.His evidence disclosed in effect that he and his
newspaper wrote a number of stories whipping up suspicion about the whole
electoral process including, "Ghost voters" on the electoral rolls (which was
a reference to duplicate national registration cards). They wrote that the
Electoral Commission was partisan and that there were pre-marked ballot
papers which would be used. Like PW93, he too analysed the results from an
initial document availed him by an officer from the Elections Office when
compared with the final results released later. He noted the discrepancies
and the odd coincidence of having idential pairs of results affecting ten
constituencies and the odd coincidence of having identical pairs of results
affecting ten constituencies, that is five pairs. He also drew attention to the
instances in more than forty constituencies where the results were later
varied or altered. The witness also attempted – without much succcess – to
show that there was a predetermined set pattern in the number of votes
received by (or perhaps “allotted” to) each of the presidential candidates.

As previously indicated we have digested and made some comments upon

the whole of the evidence of PWs93 and 96 only for convenience at this
stage since the specific item being discussed pertains to the problems
associated with national registration cards. On the evidence of the witnesses
reviewed, we consider that the situation and the state of affairs revealed
amounts to a near national disaster. It is unacceptable and improper, indeed
it is contrary to the plain intention of the legislature which enacted the
National Registration Act, that there should be any, let alone hundreds of
thousands of, national registration card with identical numbers shared by two
or three Zambians. The franchise and the electoral system’s integrity has
relied quite heavily on the national registration cards as a means of
identifying and vouching for the Zambian voter. We take judicial notice that
the national registration card plays a major role in identifying a person in
connection with many other things, such as employment and social security.
It seems to us that, as long as the concerned Department and the authorities
do not correct this anomaly, the electoral system will continue to be
seriously undermined and questioned. The statistic for duplicate national
registration cards reflected in the voters’ registers given by Mr. Kalale pale
into insignificance in camparison with the far worse problem of national
registration cards revealed by Mr. Mwiinga. At the end of the day, however,
 206

it can not be said that the flaws associated with the national registration card
– which are harmful to the system as a whole – benefitted or disadvantaged
any one of the presidential candidates any more or less than the others.

(b) VOTERS CARDS

As to (b), that is voters cards, we considered three areas of concern raised by

the witnesses. firstly there was the problem of fading which PW2, PW50
and others spoke about. We saw such cards and we accept that it is a
weakness of the new card that it fades and can even be rubbed clean. We
note that the problem of fading cards could be mitigated by the facility of the
voting certificate – when not misused – and replacement during a revision
exercise. However, the mischief which was not acceptable and which could
have been avoided had the officials used some common sense was the
unwarranted refusal to allow voters like PW50 the chance to exercise their
right to vote on account of the fading of the card. The second problem
concerning the voters’ cards was that some people ended up with two voters’
cards each, leading to the suspicion on the part of the petitioners that they
could vote twice. We saw such cards which were produced by the
witnesses. However, it was also explained to us by the witnesses from the
Elections Office (notably PW22 Mr. Musonda) that there had been a lot of
misplacement of voters in the wrong provisional registers on account of
errors of the coding of polling districts which were committed by the
officials at the time of completing the registration forms. This necessitated
corrections which entailed the issue of replacement cards and the transfer of
voters’ names to the correct final registers. In the process, some voters
ended up having tow voters’ cards because the earlier one was not always
physically withdrawn. This confusion also resulted in many affected voters
not collecting their replacement cards and not voting. In some cases, the
corrections were still not made in final register. We accept the evidence of
PW22 and find that where a second voters’ card was issued in replacement
of an earlier one affected by misplacement in the registers on account of the
wrong coding, the result was simply that the whole process become rather
untidy. However, we accept that the concerned voters could not vote twice;
they could not use the first card. The mischief of double voting which was
apprehended can safely be ruled out.

The third problem regarding voters’ cards concerns the category of crooked
and dishonest persons like Zgyambo and Ms Kalo who had more than one
voter’s cards and successfully voted two or more times. This category are
 207

illustrated not a flaw in the system but a fraud on the system. The sad part is
that Zgyambo’s tricks were facilitated by an official decision to accept the
same national registration cards and treat it as representing different persons
even when obviously not.

(c) THE REGISTERS

As to (c), that is the registers, the evidence much of which we have already
outlined pointed to four main complaints. We should first make the
observation, which is trite, that the exercise of the right to vote in periodic,
genuine, free and fair elections is predicated upon the availability of a decent
and acceptable register of voters in which all the eligible Zambians who took
the trouble to register should be reflected. It is a fact also that while a
provisional register can have mistakes which are expected to be corrected
through the process of the publication of such registers, the final registers
should generally reflect a high degree of accuracy so that no registered voter
is disenfranchised. We should also make the observation that in this trial,
there was no single witness who was a potential voter who came to say that
he was refused registration. The only examples of unjustified
disenfranchisement we heard were of the two voters in Bweengwa who were
reflected as toddlers and the many who were the victims of uncorrected
misplacements due to wrong coding. Otherwise the frontal attack on the
integrity of the registers came mostly from PW93 as we have already seen.
He spent a lot of time on the provisional registers but his criticisms were
valid only in respect of any mistakes which were not corrected.

Of the four areas of complaint, the first related to the unpopular decision of
the Electoral Commission to authorise identical national registration cards to
remain on the registers. This was confirmed by PW22 and CWI as well as
the provisional and final registers exhibited in the case. This resulted in
52,703 duplicate national registration card cases with different names
representing different individuals. We also accept that there were 9,540
other duplicate national registration cards with the same names but different
dates of birth and which could conceivably mean that some people appeared
twice and had potentially two votes. We also accepted the evidence of CWI
who told us that there were 33,444 double registrations by the same
individuals where a correction was made in the final register by leaving
them where they registered first. In the last case, although leaving a person
where he/she registered last would be more logical, we accept that the
necessary correction had been made to prevent double voting. In relation to
 208

the whole complaint of duplicates remaining on the registers, we note that all
of them put together do not exceed or even reach 100,000 which, when
looked at proportionately and in the context of a nation-wide election which
a presidential election is, speaks for itself. We have already made reference
to the fact that the decision to allow duplicates also facilitated multiple
registration by crooks like Zgyambo who must have been assisted by
partisan officials. PW93 also gave instances of multiple listing of a voter, a
phenomenon which was so isolated and so rare that it required the keen-eyed
vigilance and virtually microscopic scrutiny of this witness to spot it.

The second area of complaint related to the use by some election officials of
provisional or final registers indiscriminately at the polling stations. The
complaint was voiced by PW93 and the phenomenon was confirmed by
PWs 21 and 22. Apart from showing carelessness and untidiness in the
performance of the election officials’ duties, no specific mischief or baneful
consequence was shown to have resulted.

The third area of complaint related to the misplacement of voters in the

registers which was not corrected in the final registers. PW93 spoke about
this and was on firm ground on Mumbezhi. There was other evidence
suggesting that some voters were affected by this in the Isoka, Mbala and
Mporokoso areas. There was also the evidence of PW39 Mr Andrew
Bwezani Banda, one of the ZADECO Vice Presidents and a candidate in the
Chipata Central Parliamentary Constituency. His evidence touched on a
number of aspects, including the flaws resulting from the misplacement of
voters. Mr. Banda complained about the MMD's use of government motor
vehicles in their campaigns when they were also distributing medicines in
the rural clinics in the Lumezi Constituency in neighbouring Lundazi. He
talked about how the leaders dished out money to schools and other public
projects and also how the respondent visited Chipata and announced sale of
council houses at give-away prices, urging the voters to vote for him. We
have already dealt with these aspects of the case. However, Mr. Banda also
informed the court that a lot of polling stations (which he named) were
wrongly listed or misplaced. We learnt that there was much confusion due to
the misplacement of polling districts and polling stations belonging to
Chipata Central into Luangeni which resulted in some voters not voting.
Some of the voters ended up having two voters' cards while the gazetting of
any corrections made was not brought to everyone's attention. The confusion
was, needless to say, attributable to the elections administrators and there
 209

was no suggestion that this flaw in the system benefitted any particular
candidate or disadvantaged one any more than the other.

Finally, PW93 complained of instances of incomplete personal particulars

such as a missing first name or an incomplete residential address of a voter.

Having examined the flaws on the registers, we can confirm - and it is our
finding - that there were indeed flaws or faults which did not contribute to
building confidence in the system and which could and should have been
avoided. Flaws which facilitated the possibility of more than one vote per
person conduced to illegality since the democratic system we have embraced
which is underpinned by the Constitution and the Electoral Act envisages
and confers only one vote in each election. However, having reviewed and
analysed all the evidence, it is our finding that there is nothing to support the
suspicion which was voiced of a built-in majority for the MMD or anyone.

(d) POLLING DISTRICTS

As to (d), that is the polling districts, we considered the complaints and the
flaws, if any, in the light of the evidence given by PWs 93, 96 and 39.
Having carefully considered the evidence, it is our finding that the evidence
of the increase in the number of polling districts was not evidence of any
flaw in the system. There was nothing in the evidence to warrant the raising
of suspicion by PWs 93 and 96 nor was the increase itself evidence of some
sinister development to do with rigging or something of the sort. The other
flaw testified to by PW93 was the allegation that some polling districts were
not gazetted. As we have already seen, this was shown not to be true and the
witness had to concede under cross-examination. Similarly, the suggestion
that there were or there may have been sinister and subterranean adjustments
to the constituencies was not borne out. Thus, the allegation of ten polling
districts in Ndola being shifted from Chifubu to Kabushi when some 1991
documents had listed them under Chifubu had to be abandoned and PW93
conceded he would not have raised the complaint had he seen the maps, the
gazettes and the other documents. However, it is to be noted that PW39 at
least was on firm ground when he complained about the polling districts and
polling stations which were wrongly listed or misplaced in Chipata. It was
true to say that the corrections in the gazette, if any, would not have been
seen by many. Some of the misplacements persisted up until the polling
day, thereby preventing the electorate from voting. The evidence of PW39
Mr. Andrew Banda on this point was not rebutted and the point was well-
 210

taken. The misplacements ought to be rectified so that none is

disenfranchised and dissatisfaction and unwarranted suspicion avoided.

(e) POLLING STATIONS

As to (e), that is flaws associated with the siting of polling stations we heard
three types of complaint. The first was that in this day and age when the
values of multiparty democracy ought to be evident both in practice and in
perception there actually were some polling stations established at premises
belonging to party officials. This was obviously wrong and conducive to
malpractice, Examples were given by PWs 69, 77 and 46. PW69 was Mrs.
Prisca Nkhoma, a polling agent for the Lima Party in Chongwe. We heard
from her that her polling station was a tent erected at the local MMD
Chairman's house. The Chairman kept telling the people to vote on the
clock; his wife offered free traditional beer and drew a clock on the voters'
palms before they went in to vote. The witness saw at least one voter who
collected her voter's card from the Chairman who was keeping a batch of
them. The evidence of PW77 Mr. Machina, a polling agent for Dr. Guy Scott
was to the same effect as that of PW69. Apart from the foregoing, we have
already alluded to the example given by PW46 Mr. Kandeke who voted in
Kabwe at a polling station established at a beer-hall or tavern belonging to
the local MMD Chairman. The second type of complaint concerned the
misplacement of polling districts which resulted in the loss of polling
stations or their own misplacement so that some people could not even vote.
This came out of the evidence of PW39. The last kind of complaint under
this part was that by PW49 Mrs. Emelio who complained of the vast
distances many voters were expected to walk to the polling stations in
Sinjembela as a result of which people did not vote. This was a valid
complaint of general interest and occurrence and which should be
considered by the authorities concerned, notwithstanding that some people -
like PW93 - would probably still not favour the creation of any more polling
districts.

(f) RESULTS

As to (f), that is flaws in the results, the main evidence was that given by
PWs 93 and 96 a precis of which we have already given. One complaint
related to the initial results announced which had five identical pairs of
results farm ten constituencies, provoking the suspicion or allegation that the
results were predetermined and cooked up or plucked from the blue. We
 211

accept that corrections were made but nonetheless such identical sets were
there at first. Whether this was as a result of gross negligence or carelessness
or not (in the prevailing climate of political distrust, hatred and mutual
dislike), it led to a lot of suspicion on the part of the petitioners. The second
complaint related to non-identical results but which were nonetheless
altered. We accept that all this weakened confidence and belief in the system
and did not redound to the credit of those managing the electoral process.
The third complaint we consider not to have been well-taken and this was
that candidates got a similar number of votes in a variety of constituencies;
suggesting that there was an allocation of predetermined figures which had
been conjured up. We examined the evidence very closely and did not
discern odd coincidences of the kind to arouse this type of suspicion in an
objective observer. The trouble is that there was very little objectivity and
too much distrust.

The flaws of all types which we have said were established, of course, did
not reflect well on those managing the electoral process. Many of them can
and should be addressed in order to enhance our democratic profile and in
order to engender greater confidence in the electoral process. Elections, it
goes without saying, are the sole lawful, constitutional, and legitimate
method for the peaceful and legal acquisition of political power. They are
the culmination of the exercise of some of the most basic fundamental rights
such as the rights of free association, free assembly and free speech the
maintenance of which is vital in order to sustain free political discussion and
free political choices. Those in power should govern with the consent and by
the will of the governed expressed in periodic genuine open, free and fair
elections where the result reflects the exercise of free choice. If it be the will
of the people, through the electorate, that there be changes, elections
guarantee that the changes desired shall be obtained by peaceful means. We
repeat: The flaws identified need to be addressed by the authorities.
However, flaws by their very nature go to the general integrity of the system
and do not necessarily suggest that the electoral system has been
comprehensively massaged or predisposed to grant an unfair or any
advantage or disadvantage to any one, in advance.

CONCLUSION

Having reviewed the evidence, it is necessary to conclude. Admittedly,

there are some witnesses whose evidence we have not specifically alluded to
and which we considered to be unhelpful to the issues before us. Persons
 212

like PW70 Mr. Jerade Sekeleti, PW71 Mr. Kayanda and PW72 Mr. Jackson
Sekeleti who complained that the MMD candidate Mr. Nkausu visited their
polling stations and greeted some people did not make any useful
contribution to this case. Neither did PW43 Mr. Tiyaonse Kabwe who -
having read the evidence of PWI2 in the Post newspaper - wished to
comment on it and to dispute his assertions. There were a number of
witnesses from the media who produced various newspaper articles which
did not advance the case in any useful fashion. There were other witnesses
not specifically mentioned - such as PW37 a polling agent for PW82 -
because the point they covered has been adequately dealt with by reference
to the evidence of other witnesses.

We should also mention that, from the evidence of the petitioners PWI, Mr
Zulu, PW2 Mr. Lewanika, PW8 Mr. Kambaila and PWI6 Mr. Mung’omba,
the petitioners had a number of grievances which are largely if not purely of
a political nature. The resolution of such political issues would have more
naturally sounded in another forum than in a courtroom where the parties
have vented their feelings in default of meaningful dialogue among our
politicians. Thus, they complained of the manipulation of the constitution by
the amendments of 1996 which appeared to them to have been selectively
and advisedly targeted. One of the them, Mr. Kambaila, even went so far as
to call upon their Lordships to declare the 1996 amendments requiring the
parents of a candidate to be citizens as null and void. Such call, of course,
went beyond the ambit of an election petition which was not constituted for
such a purpose. Some of the petitioners raised concerns about the need for a
mutually agreed independent Electoral Commission to manage the elections;
concerns about the use of the public media and the limited access to it by the
opposition; and concerns about the Public Order Act. There were complaints
concerning the use - or perhaps more accurately the misuse - of public or
government resources, concerns some of which the Electoral Commission
endeavoured to address when it set out a code of conduct (by Statutory
instrument 179 of 1996) apparently more honoured in breach than in
observance. It seems to us that resolution of political issues in the political
arena is to be preferred to litigation. For example, some measures which
may be considered offensive, provocative, unjust or unfair in the political
arena so as not to be universally acceptable may yet strictly speaking be
"legal" as a matter of strict law. It seems to us that in such event where the
court may be unable to pronounce upon their validity based on their possible
illegality or unconstitutionality, the politicians owe it to the citizens - (who
are undoubtedly entitled to peace and the quiet enjoyment of life) - to
 213

resolve the political issues and to underight the political well-being of the
nation. This we find to be the challenge facing our politicians on some of
the grievances brought to our attention by the petitioners. It is certainly not
part of the remit of any court (to borrow from the language in the Akar case)
to start debating the wisdom or desirability.or fairness of some of the
measures if a legal or constitutional challenge is unavailable.

We are also aware that there were allegations made in the petition which
have either not been supported by any evidence or not been proven.
Examples of this include the allegation 'that at the poll, the polling stations
and rooms where people cast their votes had intimidating presence of
heavily armed soldiers and policemen there through bullying voters into
voting for the respondent and his party in government as the particulars of
the voters were also endorsed on their ballot papers thereby ensuring that the
vote was not secret, and a voter's choice could be traced." There was not an
iota of evidence tendered; not a single witness, of the many who testified 'to
events at a polling station, said there were the alleged "heavily armed
solders" at all or any police officers bullying any one. Not one person said
particulars were written on the ballot papers unless the reference was to the
voter's serial number which is written on the ballot counterfoil; a practice
which has always been there in Zambia. There was also an allegation that
double-voting was facilitated by the provision of substandard ink that could
be washed off and by the failure "to put measures in place to detect and stop
the use of invisible rubber hand gloves" which allegedly allowed many
people with more than one voter's cards to vote as many times as they had
cards. While there was some evidence of double voting by the dishonest like
Zgyambo and Miss Kalo who washed off the ink, no one came to talk about
invisible rubber gloves. We have already dealt with the case of the voter
who had two voters' cards because of coding errors and we have already
found as a fact that such voters could not vote twice, even if they tried to do
so, because their names only appeared once in the final registers in respect
of the corrected polling district.

There was yet another allegation that the Electoral Commission created new
polling stations which were secretly used. No evidence was led to support
this claim. There was an allegation that persons who had died prior to the
election somehow voted in the election using MMD cadres who were
supplied with the requisite documents. This allegation may have been
intended to be proved by the witnesses from Chongwe who claimed to have
been given false identities and to have been driven to Ngwerere to vote in
 214

those other names. We have already discussed this evidence which was not
believable, as already found.

When all is said and done, we accept that there was on the whole reasonable
cause for complaint and for bringing this petition which it was in the public
interest to ventilate in court. Some of the grievances and issues taken up
were certainly well- taken while obviously some could not have been
pursued had the complainants been possessed of the full facts or
explanations which emerged during the trial. For reasons we have given, we
decline to determine and declare that the provisions of Article 34(3) (a), (b)
and (e) of the constitution have not been satisfied in respect of the
respondent. We find that he was qualified to contest the election. It follows
also that we do not find that he falsely swore as to the citizenship of his
parents. We were asked to declare that the election process was not free and
fair and that the election was rigged and therefore null and void; The
election process had flaws and irregularities, as we have already pointed out.
The bottom line, however, was whether, given the national character of the
exercise where all the voters in the country formed a single electoral college,
it can be said that die proven defects were such that the majority of the
voters were prevented from electing the candidate whom they preferred; or
that the election was so flawed that the defects seriously affected the result
which could no longer reasonably be said to represent the true free choice
and free will of the majority of the voters. We are satisfied, on the evidence
before us, that the elections while not perfect and in the aspects discussed
quite flawed were substantially in conformity with the law and practice
which governs such elections; the few examples of isolated attempts at
"rigging" only served to confirm that there were only a few superficial and
desultory efforts rather than any large scale, comprehensive and deep rooted
"rigging" as suggested by the witnesses who spoke of aborted democracy.

The petition is unsuccessful and it is dismissed. However, it is clearly in the

interests of the proper functioning of our democracy that challenges, to the
election of a president which are permitted by the constitution and which are
not frivolous should not be inhibited by unwarranted condemnation in costs.
In the event, it is only fair that each of the parties should bear their own
costs.

Petition Dismissed
 215

JOSEPH KNOX SIMWANZA v THE PEOPLE (1985) Z.R. 15 (S.C.)

SUPREME COURT
NGULUBE, D.C.J., GARDNER AND MUWO, JJ.S.
20TH FEBRUARY, 1985
(S.C.Z. JUDGMENT NO. 3 OF 1985)

Flynote

Criminal Law and Procedure - Evidence - Fitness - Calling or recalling of

witness after defence case - when proper.

Evidence - Bankers' records obtained in absence of search warrant -

Legality and admissibility of - Voluntary production of bankers' records by
bankers - Whether search warrant necessary.
Evidence - Court calling rebutting evidence - Whether proper.

Headnote

A Court - Martial convicted the appellant of stealing public funds contrary

to s.49 of the Defence Act. Certain wrongful overpayments were made into
the appellant's personal bank account and he withdrew such money for his
own purposes. In his defence, he alleged for the first time that he had lost
his cheque book and was not party to the withdrawals deposed to by the
prosecution witnesses. Thereupon, of its own volition the court recalled a
witness who had produced bank records to produce further records and the
cashed cheques to rebut the appellant's allegations. On appeal it was
contended on behalf of the appellant that the Court Martial erred in
recalling a prosecution witness at a time when the prosecution had closed
its case and the appellant had given his evidence. It was also contended that
the failure by the prosecution to obtain a search warrant before the
appellant's account was checked and documents brought to court made the
documents from the bank inadmissible as evidence.

Held:

(i) Under r. 55 of the Defence Force (Procedure) Rules, which is to the

same effect as s.149 of the Criminal Procedure Code; a court may
call or recall a witness to clarify an issue which is crucial to the just
 216

decision of the case and which it is in the interests of justice to

clarify;

(ii) Under r.60 of the Defence Force (Procedure) Rules, which is

similar to s.210 of the Criminal Procedure Code, the court may
allow the prosecution to call evidence to rebut issues which have
arisen ex improviso in the defence;

(iii) It is the duty of the prosecution to apply to call the rebutting

evidence. It is highly undesirable, and procedural irregularity, for
the court to take it upon itself to call the rebutting evidence.

(iv) The absence of search warrant does not make documents from the
bank inadmissible by statute. The Evidence (Bankers' Books) Act,
Cap.171 does not require that a search warrant must always be
obtained and produced in court. Where the bank consented to the
production of their own documents, in the absence of any search
warrant, the evidence was not illegally obtained nor was it
inadmissible.

Cases referred to:

(1) Penias Tembo v The People (1980) Z.R. 218
(2) Double Mwale v The People (1984) Z.R. 76
(3) Liswaniso v The People (1976) Z.R. 277

p17

Legislation referred to:

Evidence (Bankers' Books) Act, Cap. 171, s. 3.

For the appellant: M.M. Mwisiya of Mwisiya and Company,

For the respondent: R.R. Balachandran, Assistant Principal, State
Advocate.

___________________________________________
Judgment

NGULUBE, D.C.J.: delivered the judgment of the court.

 217

The Appellant was a Captain in the Zambia National Defence Force. He was
tried and convicted by a Court - Martial on two counts of stealing public
funds, contrary to section 49 of the Defence Act. The allegation of the first
count was that the appellant stole a sum of K1,800 and on the second count
that he stole a sum of K3,000.00. He was sentenced to undergo
imprisonment for 18 months and in addition he was sentenced to be
cashiered from the Army. He now appeals against both the conviction and
the sentence.

The brief facts of the case were that the appellant used to receive his
monthly salary through his bank account and that such salary was normally
in the range of K200 - odd; and that this information was reflected in the
salary slips and certain paysheets held by the Army Finance Directorate.
There was evidence that on 28th June, 1982, there was deposited in his
account, against an unauthorised payslip, a sum of K2,078.69 when the
salary the appellant was entitled to was only K278.69. Before then, the
balance standing to his credit is said to have been a sum of K20.22. There
was, therefore, an overpayment for this month in the sum of K1,800 which
the Prosecution alleged the appellant had stolen.

The evidence on the second count was to the effect that on 28th September,
1982, there was deposited into the appellant's account, against an
unauthorised payslip, a sum of K3,249.62 when his salary for that month
was only K249.62. Before then the appellant had in his bank account a credit
balance of K199.29. The difference between the appellant's salary and the
amount deposited came to K3,000 which the Prosecution alleged the
Appellant had stolen on the second count.

The defence which the appellant advanced at his trial was to the effect that
he was not aware of the unauthorised deposits and that he had not sanctioned
the withdrawals alleged by the Prosecution.

On behalf of the appellant, Mr Mwisiya advanced two main grounds of

appeal. The first is that the Court-Martial erred in recalling a witness from
the Bank to produce the cheques allegedly issued by the appellant at a time
when the Prosecution had closed its case and the appellant had given his
evidence. The second ground was to the effect that the Prosecution had not
complied with the Evidence (Bankers' Books) Act, Cap.171 in that no order
of the Court was obtained before the appellant's account was checked and
documents brought to Court. In relations to the first ground of appeal it was
 218

Mr Mwisiya's contention that the Prosecution had failed to establish a prima

facie case at the time when their case was closed; the argument being that, at
that stage, there was no evidence to show a prima facie case that the
appellant had converted

p18

any of the money deposited in his account. Mr Mwisiya relies on Penias

Tembo v The People (1) which held to the effect that it is mandatory for a
Court to acquit an accused at the close of the Prosecution case if the facts do
not support the case against him and that no evidence which is led thereafter
can remedy the deficiency in the Prosecution evidence.

We do not, however, accede to the submission that the appellant was

wrongly placed in his defence. As Mr Balachandran pointed out, there was
evidence adduced by the Prosecution which established a prima facie case.
In particular, the ledger card did provide prima facie evidence of
withdrawals and therefore, of the conversion, in terms of section 3 of the
Evidence (Bankers Books) Act, Cap.171 Section 3 aforesaid reads:

"Subject to the provisions of this Act, a copy of any entry in a banker's

book shall in all legal proceedings be received as prima facie evidence of
such entry, and of the matters, transactions and accounts therein recorded."

In the premises that portion of Mr Mwisiya's argument to the effect that

there was no prima facie case fails. There was, however, a submission to the
effect that when the Court recalled a witness from the bank to produce the
cheques and to answer certain other questions, such witness was in fact
called to rebut evidence given by the appellant in his defence which was to
the effect that he had lost the cheque book and had not been party to the
withdrawals deposed to by the witness. If we understood him correctly, Mr
Balachandran agrees that the recalling of PW2 was for he purpose of
rebutting allegations which the Appellant made for the first time in his
defence. It is to be observed that the power of the Court to recall a witness is
contained in Rule 55 of the Defence Force (Procedure) Rules which is to the
same effect as Section 149 of the Criminal Procedure Code. Under these
provisions, a Court may call or recall a witness to clarify an issue which is
crucial to the just decision of the case and which the Court considers to be in
the interest of justice to have clarified. But where, as here, the object of the
exercise is to rebut issues which have arisen ex improvise in the defence, the
 219

rebuttal is provided for in Rule 60 of the Defence Force (Procedure) Rules

which is similar to section 210 of the Criminal Procedure Code which Mr
Mwisiya had cited in his argument. In dealing with the recalling of witnesses
under Section 149 of the Criminal Procedure Code, which we have said is
similar to Rule 55, this Court observed, in the case of Double Mwale v The
People (2), to the effect that the power conferred upon the Court is designed
to ensure that justice is done not only to the accused but to society as well.
But we also made the point that the power should be exercised in a proper
case and that the discretion of the Court should be exercised with all due
regard to the traditional considerations for the exercise of a judicial
discretion in a criminal matter. We said the section could not be legitimately
used for purposes such as supplying defects which have arisen in the
Prosecution case or where the result would be merely to discredit a witness.
We also made the point, in that case, that the Court should not normally
exercise

1985 ZR p19
NGULUBE DCJ

its discretion of its own motion when the result would merely be to prejudice
the accused's position. As we have already indicated, the principles in that
case refer to the calling or recalling of witnesses in the interests of justice.
But similar consideration can be discerned from Rule 60 and section 210 to
which we have referred with regard to the calling of rebutting evidence. In
our view, it was clearly the duty of the Prosecution to apply to call the
rebutting evidence. It was, in our opinion, highly undesirable for the Court to
assume the role of the Prosecution and to enter into the arena reserved for
the parties when in fact Rule 60 of the Defence Force (Procedure) Rules
makes it clear that it is for the Prosecution to call evidence in rebuttal if the
accused raised any matter in his defence for the first time which they could
not reasonably have foreseen. We find, under the circumstances, that when
the Court - Martial took it upon itself to call rebutting evidence it committed
a procedural irregularity. However, we have no doubt that the evidence itself
was otherwise admissible and it could have been adduced in a proper
manner at the instance of the proper party. As there was a possible way of
introducing the evidence, we do not see that the irregularity occasioned any
miscarriage of justice. Though, therefore, the point taken has been
determined in favour of the appellant, it cannot affect the outcome of this
Appeal.
 220

Under the second ground of appeal, Mr Mwisiya has argued that the
evidence obtained from the bank was obtained illegally and in contravention
of Cap.171 of the Laws. We do not see how that Act can be read in the
manner suggested by Mr Mwisiya to the effect that, it is always necessary to
obtain a search warrant which must be produced in evidence before evidence
based on banker's records can be admitted by the Court. We agree with Mr
Balachandran that a proper reading of the Act will show that the object of
the Act was to oblige bankers to produce documents which they would
otherwise not have been obliged to produce under the law relating to the
relationship between the banker and his customer. Article 19 of the
Constitution of Zambia, which Mr Mwisiya has prayed in aid, does not even
arise in this matter since the privilege is that of the banker and since the
documents inspected and produced were the property of the bank which had
consented in the matter. We find that we are unable to assume that there
was any irregularity more especially when the issue was not even raised at
the trial. We are satisfied that the absence of a search warrant does not make
documents from the bank inadmissible by statute and, for this reason, we
find that there is no need, as suggested by Mwisiya, for us to consider if the
case of Liswaniso v The People (3) is good or bad law. The point discussed
in that case does not arise and, as presently advised, we still feel that our
decision in Liswaniso is good law.

Mr Mwisiya has also argued that the documents from the bank were
inadmissible because they were mere copies and not verified as required by
Cap.171. We note that the record does not support the assumption which Mr
Mwisiya asks us to make to the effect that the documents were mere copies.
We observed that no question was raised at the trial to that effect and in any
case certain portions of the record to which our attention

p20

was drawn by Mr Balachandran indicate that the documents were originals.

We therefore apply the maxim "omnia praesamuntur rite es acta."

Mr Mwisiya also suggested that the appellant may have received certain
other moneys and allowances and that would account for the moneys which
the Prosecution contended were overpaid. We must point out that this was
not the defence advance by the appellant and we must decline to speculate as
to what other defences the Appellant may have had. As already indicated the
Appellant's defence was that he was not aware of the transactions on his
 221

account. But the evidence which was accepted established that the appellant
had, after the deposit of June,1982, withdrawn various sums in aggregate
totalling some K1,899, a sum so manifestly beyond his legitimate receipts
that the conclusion is not to be resisted that he was aware of the larger
deposit. Similarly, the evidence established that, after the deposit of
September, 1982, the appellant withdrew various sums totalling about
K2,200 which sum is, once again so vastly greater than he can possibly have
had in normal receipts of salary. There was evidence, therefore, before the
Court - Martial which we regard to have been and to be overwhelming
against the Appellant. The appeal against conviction is accordingly
dismissed.

Before we leave the question of conviction, however, we wish to observe

that in relation to the first count there was evidence that after withdrawing
from the large deposit referred to, there was standing to the Appellant's
credit in his bank account a sum of K199.29n. It is clear to us, therefore,
since this amount was less that the Appellant's salary that the appellant had
exhausted the entire sum of K1,800 representing the overpayment on the
first count. We do not disturb the conviction on that count. However, with
regard to the second count the same was not the case. The evidence
indicated that the appellant was as entitled to a salary of K249.62 which
together with the balance in his account to which we have already referred,
meant that the Appellant had in his account money which could be regarded
as his own amounting to K448.91. There was evidence that as at 22nd
October, 1982, the Appellant had withdrawn all the money except for
K1,248.91. When credit is given for the sum of K448.91, aforesaid, it is seen
that the sum of K880 was not withdrawn and, therefore, not converted out of
the amount on the second count. For this reason, we propose to amend the
conviction on the second count so that the appellant is guilty of theft of
K2,200.As already indicated, the appeal against conviction is dismissed.

With regard to the sentence, that is 18 months imprisonment with hard

labour plus cashiering, we agree with Mr Mwisiya that the sentence should
be regarded as too severe. We agree that, as there was no evidence of
conspiracy and since the appellant merely took advantage of overpayments,
an effective prison term plus cashiering comes to us with a sense of shock.
We will allow the appeal against sentence by altering

p21
 222

the effect thereof. We suspend the whole prison term on condition that for a
period of 12 months from today the appellant is not convicted of any offence
involving dishonesty. We do not propose to interfere with the sentence of
cashiering.

Appeal against conviction dismissed; but that against sentence allowed.

 223

GODFREY KENNETH MIYANDA, ANDERSON KAMBELA

MAZOKA, CHRISTON TEMBO, NEVERS MUMBA, TILYENJI
KAUNDA, BEN MWILA AND THE ATTORNEY-GENERAL, THE
ELECTORAL COMMISSION AND THE RETURNING OFFICER
FOR PRESIDENTIAL ELECTIONS.

THE HIGH COURT

HONOURABLE MR. JUSTICE PETER CHITENGI
2ND JANUARY, 2002
(SCZ No. 2001/HP/1174)

Flynote:

Presidential Petition – Judicial Review – Elections

Headnote:

The applications all sought to be elected as Presidents of the Republic of

Zambia. At the time of this application, the presidential elections were still
going on in some constituencies. The applicants among other things claimed
a recount under Regulation 44 of the Electral (General) Regulations,
verification of some electral results in some constituents and delays in
voting in the Luapula and Northern Provinces. And most importantly an
order that the returning officer refrains from announcing the Presidential
election results and declaring a winner until after verification and recount.

Held:

(i) The Supreme Court has jurisdiction to hear Presidential election

petition and not the High Court.

(ii) For Judicial Review to lie there must be a decision in the first place.

(iii) The Constitution is the most Supreme Law of the Land and cannot
be over thrown by Acts of Parliament, Bye-Laws, rules of court etc.

(iv) Held further that the election of the Presidnet cannot be arrested by
way of Judicial Review.
 224

Matter being a constitutional issue application dismissed.

For the Appellants: Mundia Messers C L Mundia & Company, Mutti,

Messers Lukona Chambers, Matibini, Nchito, Messers MNS Legal
Practitioners, Chisanga, Mwiimbu, Messers Mwiimbu & Company

For the Respondents: B.C. Mutale, Attorney-General and Jalasi State

Advocate

Judgment

This application was made Ex Parte but because of the nature of the subject
matter of the substantive action I formed the firm opinion that the
application be heard Inter Parte so that it can be argued whether Leave for
Judicial Review should actually be granted.

The applicants, who individually seek the Presidency of the Republic of

Zambia, have various complaints and concerns about the current Presidential
elections which I am told are still going on in some constituencies. From the
Statement and Verifying Affidavit, the applicants who belong to different
political parties but whose affinity now appears to be the failure by all of
them to win the Presidency, have mainly complained that the Returning
Officer has and continue to ignore to order a recount and verification of the
Presidential polls when under Regulation 44 of the electoral (General)
Regulations the Applicants are entitled to a recount as long as the request is
not unreasonable and by Regulation 46 of the Regulations aforesaid the
Returning Officer is obliged to appoint time for verification. Further, the
have complained of some alleged deliberate misposting of election results in
Constituencies called Moomba, Matero and Livingstone, a situation which
the Applicants say requires verification. Further more, the applicants have
expressed concerns about identical results in the Roan and Luanshya
constituencies which they say raise suspicions and requires verification. The
applicants have also complained about delays in voting in the Luapula and
Northern Provinces which because of lack of monitors who had ran out of
allowances the Applicants say require verification.

The applicants seek verification and recount in the Copperbelt, Northen,

Lusaka and Luapula Provinces and an order that the Returning Officer
refrains from announcing the Presidential election results and declaring a
winner until after verification and recount.
 225

The Attorney-General put in the forefront of his submissions the argument

that this Court being the High Court lacks jurisdiction in this matter because
this matter relates to election of the President. As authority for this
proposition the Attorney-General relied on Article 41 of the Constitution and
Section 9 (3) of the Electoral Act as repealed by Act No. 23 of 1996.

The Attorney-General’s second argument was that the Applicants seek

remedy under Order 53 RSC. All matters relating to Presidential election
must be brought before the full bench of the Supreme Court. The court of
first instance in Judicial Review is the High Court. It was the Attorney-
General’s submissions that Order 53 RSC is therefore not applicable.

Thirdly, the Attorney-General submitted and argued that the purpose of

Judicial is to question and challenge the decision of a public officer. As
authority for this proposition the Attorney-General cited Order 53/1-14 RSC.
The Statement filed by the Applicants does not disclose the decision made.
It was the Attorney-General’s submission that it was common knowledge
that the Returning Officer has not announced the results and that the
Returning Officer has not received the results from the second Respondent.
In the circumstances, the Attorney-General then referred to the position of
the MMD Presidential candidate which in my view is not crucial to the
determination of this application.

Mr. Matibini for the Applicants submitted that Section 9(3) of the Electoral
Act No. 23 of 1996 does not apply here because it refers to challenge of
nomination or election of the President. It was Mr. Matibini’s submission
that the challenge of the nomination and election of the President was not the
issue in this case. The issue before the court relates to initial request for
verification which was superseded by a request for a recount. The Returning
Officer has communicated the decision on both. In respect of verification
see Exhibit GKM2. The decision on recount has been communicated after
this action was commenced. It was Mr. Matibini’s submissions that the
Returning Officer’s discretion in so far as recount is concerned is a matter
which the Court can determine. There is, Mr. Matibin argued, a distinction
between the jurisdiction of the Supreme Court as a trier of election petition
and the exercise of discretion by a Returning Officer under the Electoral
Regulations.
 226

Under my prodding Mr. Matibini submitted that under our law it is possible
for the Returning Officer to stop the Presidential election process while it ia
in motion because the Returning Officer is a Public Officer who enjoys
administrative discretion which is amenable to Judicial Review if it is not
exercised properly.

Mrs. Mutti, also for the Applicants, submitted that Article 41 of the
Constitution only deals with the election of the President and whether a
person has been validly elected as President. In the present case, no
President has been elected yet. It was Mrs Mutti’s submission that the
Supreme Court will have no jurisdiction to hear an application before the
election is considered and a winner declared.

Mrs. Mutti then submitted that under Regulation 44 of the Electoral

(General) Regulations a candidate has the right to demand a count unless the
request is unreasonable. Regulation 47 provides for verification. The
purpose of verification is to ensure that the results are ascertained before
they are declared. This is the purpose for this application. The decision
relates to the functions of the Returning Officer and not the election of the
President. Mrs Mutti then referred to the MMD Presidential candidate, an
issue which I have said is not critical to the determination of this application.
Finally Mrs Mutti submitted that this application will not prejudice the
Respondents and that if there is any one to suffer prejudice it will be the
applicants by failure to allow recount. In the event, Mrs. Mutti submitted
that the preliminary issues raised by the Attorney-General are misconceived
and should not be entertained.

The Attorney-General’s reply to all this is that Section 41 of the Constitution

should not be narrowly interpreted so as to include matters at election and
after election. It was the Attorney-General’s submission that the
interpretation should include all matters from nomination to election. The
interpretation should include errors and irregularities during the whole
electoral process. The counting, verifications are issues which are covered
by Article 41 of the Constitution. These are the issues which fall under the
embrace “Any question”. It was the Attorney-General’s submission that the
Constitution is the Grund Norm. Rules in the White Book cannot override
what the Constitution specifically provides for. The third Respondent has no
discretion on the issue of swearing and declaring a Presidential candidate.
As authority for this proposition the Attorney-General cited Article 34 of
Sub Article 9 of the Constitution. The Returning Officer has a constitutional
 227

obligation to declare and swear in a winning candidate. It was the attorney-

General’s submissions that Judicial Review is about restraint of
discretionary powers. Such discretionary powers are not deposed in the
Returning officer.

I have given my anxious consideration to this matter and I am alive to the

fact that this is a very grave matter which has raised the passions of many
people to fever pitch. If what I saw and what happened to me is anything to
go by then there is a lot of excitement going out there. It took me a long
time going round the High Court for me to gain entry to my Chambers in the
High Court. I finally appreciate the heavy responsibility that now lies on my
shoulders. In that regard, I make a passionate appeal to all those concerned
to exercise maximum restraint.

Having said I must also state that in a democracy the Rule of Law must
always prevail. Our personal passions, whatever their source, should not be
allowed to evade the Rule of Law. The law lays down what should be done.

For avoidance of doubt, I must say at the outset that this ruling does not
decide that the Applicants have no valid case in their complaints against the
elections and/or that the elections were fairly and properly conducted. These
are not issues for this forum but for the Supreme Court when it sits to hear
any Presidential Election Petition. The Supreme Court is the Court with
jurisdiction in these matters.

As I see it the critical issue in this case is whether the Presidential election
results can be announced and the winning candidate sworn in before the
determination of this application and whether the orders sought by the
applicants can issue against the Returning Officer.

The Statement indicates that the Plaintiffs seek verification and recount
which are normally done in the constituencies. In my judgment the issues of
verification and recount are peripheral. When I read the statement and the
verifying affidavits and the papers exhibited it is very clear to me that
Applicants’ complaints are about alleged irregularities. Therefore, the issues
of counting and verification of ballots are part of the important issue of
alleged irregularities in the presidential electoral process. It is most unlikely
that the Applicants would have come to Court if they were substantially
happy with the general presidential electoral process. What makes the
Applicants feel damnified are the alleged irregularities. If the complaint is
 228

about the Presidential electoral process, can the process be stayed while in
progress?

I listened to the learned submissions by Counsel on both sides and

considered the authorities they have cited. I commend them for their
resourcefulness. I accept the submissions and the authorities cited by the
Attorney-General that matters relating to the election of Zambian
Republican President principally lie in the provisions in Section 9(3) of the
Electoral Act as repealed by Act No. 23 of 1996 and particularly Article 41
of the Constitution. But these submissions fly in the teeth of pleadings
themselves which allege failure to comply with certain provisions of the
Electoral (General) Regulations. The theme of the Applicants’ complaint as
revealed by the papers on file is clearly that they have been cheated and
adumbrate that there has been massive rigging of the elections. Hence the
applicants talk about suspicion. All these matters touch on the validity of
the election in so far as it relates to the MMD presidential candidate who is
not a party to these proceedings but in respect of whom the applicants seek
an order against the Returning Officer that the Returning Officer refrains
from announcing the Presidential elections and declaring him a winner
before verification and recount of the votes. It can, therefore, not be
seriously argued that the application before the Court has nothing to do with
nomination or election of a President as Mrs. Mutti argued. The application
has something to do with the Presidential electoral process. In the event
Article 41 of the Constitution would apply.

The Attorney-General raised issues of jurisdiction and whether Judicial

Review can lie in these proceedings. Mr. Matibini and Mrs. Mutti urged that
this Court has jurisdiction in this matter while the Attorney-General
submitted and argued that this Court has in terms of Article 41 of the
Constitution has no jurisdiction. In the view I take of this matter I would not
rest my judgment on this point. Clearly, the High Court has no jurisdiction
to deal with the Presidential petitions.

What appears to me to be the critical issue is whether Judicial Review can in

fact be available in a case like this one. All Counsel who submitted before
me, through they took opposing positions, agree that for there to be Judicial
Review there must be exercise of discretion by a public officer. The
controversy between the parties is only as to whether there is or there is no
discretion. The Attorney-General also argued that the Applicants have
pleaded no decision which should be reviewed. I agree there is no such
 229

decision pleaded in the Statement. But I proceed on the premises that the
letter Exhibit GKM 3 and another received after the commencement of these
proceedings are the decisions as Mr. Matibini submitted and argued.

The question arises, can the Court in the circumstances of this case grant the
orders sought by the Applicants against the Returning Officer requiring him
not to announce election results and declare the winner the President because
the Returning Officer refused to order recount and verification of the
Presidential polls in the constituencies.

The answer to this question lies in the Constitution. As the Attorney-

General rightly submitted, the returning Officer has no discretion in these
matters. Once the result of the Presidential poll is communicated to him the
Returning Officer has under the Constitution no choice but to declare the
winner and swear him in as the President. See Article 34 sub Articles (8)
and (9). The Constitution is the Supreme law from which all other laws
trace their validity and no Acts of Parliament, Bye-Laws, Rules of Court etc.
will be given interpretation which will conflict with the Constitution itself.
In the even the High Court cannot make any order which will stop the
Returning Officer to do what he or she is required by the Constitution to do.
We cannot overthrow the Constitution. We have to abide by the
Constitutional provisions.

In fact, after reading the relevant provisions in the Electoral Act and the
Constitution I am certain in my mind that it has never been the intention of
Parliament and the framers of the Constitution that presidential election
process can be arrested before the President is sworn in. In my view the
repeal and replacement of Section 9(3) of the Electoral Act by the Electoral
(Amendment Act) Act No. 23 of 1996 appears to have been aimed at
forestalling litigation before the electoral process of a President is
completed. It is clear to me that litigation in these matters can only start
after the event. That is after the President whose election is impugned has
taken office.

The Applicants have spoken too soon and their action is premature. They
can challenge the Presidential election within the fourteen days period which
is stipulated in the law. Under the law as it stands I cannot certainly order
arrest of the Presidential election process by way of Judicial Review.
 230

In the result, I refuse the application for leave to apply for Judicial Review.
My refusal of leave for Judicial Review should not even be considered by
the Applicants as a set back because under the law their right to remedy is
still intact. If, for argument’s sake, the incoming President is sworn in today
the Applicants can file their action tomorrow.

Having regard to the nature of this action which is basically a constitutional

matter I order that each party bears his own costs. Leave to appeal to
Supreme Court is granted.
 231

CHIKUTA v CHIPATA RURAL COUNCIL (1974) Z.R. 241 (S.C.)

SUPREME COUNT (CIVIL JURISDICTION)

DOYLE, C.J., BARON, DC.J., AND GARDNER, J.S.
8TH OCTOBER, 1974
S.C.Z. JUDGMENT NO. 38 OF 1974

Flynote

High Court - (commencement of action - When procedure by way of

originating summons applies - High Court Rules, Order 6, rule 2.
High Court- Commencement of action by way of originating summons when
procedure by way of writ applicable - Whether court has jurisdiction to
make declarations.
Legal practitioners - Conducting cases - Swearing affidavits containing
hearsay evidence - Effect - Undesirability.

Headnote

The appellant was the secretary of the Chipata Rural Council, and a
specified officer as defined in the Local Government Officers Act. On the
28th August, 1972, the appellant was convicted on two counts of forgery and
uttering, contrary to ss. 347 and 352 of the Penal Code. He was sentenced to
six months' imprisonment with hard labour on each count and the whole of
those sentences was suspended. Prior to this he had been suspended from
duty by the respondent.

On the 1st September, 1972, the Council met for the purpose of determining
whether or not the appellant should be dismissed. The then chairman of the
Council gave his view of the appellant's behaviour, which was clearly very
favourable to the appellant. A vote was taken and, by 34 votes to 1, the
Council resolved to remove the appellant's suspension from duty and to
reinstate him in the Council's service. Subsequently, there was
correspondence with the Minister and on the 3rd May, 1973, the Council
reaffirmed its resolution that the appellant be reinstated. There was further
correspondence with the Minister and on the 5th October, the Council, by
resolution, reversed its previous resolutions and dismissed the appellant
from his employment with effect from the date of his conviction.
 232

The appellant brought this matter before the High Court by means of an
originating summons seeking a declaration that he was still employed by the
Council. The High Court refused to make the declaration sought by the
appellant.

Held:

(i) There is no case in the High Court where there is a choice between
commencing an action by a writ of summons or by an originating
summons. The procedure by way of an originating summons only
applies to those matters referred to in Order 6, rule 2, of the High
Court Rules and to those matters which may be disposed of in
chambers.

(ii) There any matter is brought to the High Court by means of an

originating summons when it should have been commenced by writ,
the court has no jurisdiction to mate any declarations.

(iii) The increasing practice amongst lawyers conducting cases of

introducing evidence by filing affidavits containing hearsay
evidence is not merely ineffective but highly undesirable,
particularly where the matters are contentious.

Legislation referred to:

High Court Rules, Order 6, rule 2, Order 30. 20

For the appellant: N.Kawanambulu, Shamwetna & Co.

For the repondent: E.Dumbutshena, Dumbutshena & Co.

______________________________________
Judgment

DOYLE, CJ.: This is an appeal against the refusal of the trial judge to make
declarations to the effect that the plaintiffappellant still is an employee of the
respondentdefendant council (hereinafter called the council).

The facts, in so far as it is necessary to refer to them in this judgment, are as

follows.
 233

The plaintiff was the secretary of the Council and a specified officer as
defined in the Local Government Officers Act. On the 28th August, 1972,
the plaintiff was convicted on two counts of forgery and uttering, contrary to
sections 347 and 352 of the Penal Code. He was sentenced to six months'
imprisonment with hard labour on each count and the whole of those
sentences was suspended. Prior to this he had been suspended from duty by
the respondent.

On the 1st September, 1972, the Council met for the purpose of determining
whether or not the appellant should be dismissed. The then chairman of the
Council gave his view of the appellant's behaviour, which was clearly very
favourable to the appellant. He asked for other views, but whether or not
these were given is not clear. In any event a vote was taken and by thirty-
four votes to one the Council resolved to remove the appellant's suspension
from duty and to reinstate him in the Council's service. Subsequently there
was correspondence with the Minister and on the 3rd May, 1973, the
Council reaffirmed its resolution that the appellant

p243

be reinstated. There was further correspondence with the Minister and on the
6th October, the Council, by resolution, reversed its previous resolutions and
dismissed the appellant from his employment with effect from the date of his
conviction.

The evidence in the case was entirely contained in affidavits made by the
respective advocates on each side. These affidavits were entirely hearsay. I
would like to say that I have noticed an increasing practice amongst lawyers
in introducing evidence in such a manner. In my view this is not merely
ineffective, but is highly undesirable, particularly where the matters are
contentious. In the instant case the affidavit made by the advocate on behalf
of the defendant made serious allegations against the chairman of the
Council, and it was clearly improper for the defendant's advocate personally
to make such hearsay allegations. Furthermore, as the deponents of
affidavits may be cross-examined thereon, the position can arise in which
each of the advocates would be cross-examining the other. I hope that this
practice will now cease.

In the result, the learned trial judge held that the earlier resolutions of the
Council were made mala fide, a fact which was neither admitted nor proves.
 234

Accordingly he held that the Council had the power on the 6th of October,
1973, to dismiss the appellant by reason of his conviction. He refused to
make the declaration requested.

It is plain that the learned judge, having determined the matter by finding as
a Act something which had neither been proved nor admitted, was in error
and ordinarily the result would be that the appeal would succeed. However,
for procedural reasons the appeal must in fact fail. The matter was brought
before the court by means of an originating summons. The practice and
procedure in the High Court is laid down in the High Court Rules, and
where they are silent or not fully comprehensive, by the English White
Book. Under Order 5 of the English Rules of the Supreme Court, rule 2 lays
down what proceedings must be begun by writ; rule 3, the proceedings
which must be begun by originating summons; rule 4, the proceedings which
may be begun either by writ or originating summons; and rule 5,
proceedings that may be begun by motion or petition. The Zambian Rules
are much more rigid. Under Order 6, rule 1, every action in the court must
be commenced by writ, except as otherwise provided by any written lw or
the High Court Rules. Order 6, rule 2, states that any matter which under any
written law or the Rules may be disposed of in chambers shall be
commenced by an originating summons. Rule 3 provides for matters which
may be commenced by an originating notice of motion. It is clear, therefore,
that there is no case where there is a choice between commencing an action
by a writ of summons or by an originating summons. The procedure by way
of an originating summons only applies to those matters referred to in Order
6, rule 2, and to those matters which may be disposed of in chambers.
Chamber matters are set out in Order 30 of the High Court Rules. Counsel
for the appellant was unable to show us where under the Order this matter
could be begun by an originating summons. Paragraph (j) of rule 11 of Order
30 does refer to "such other matters as a Judge may think fit to dispose of in
chambers."

p244

That clearly is not so wide as to allow a judge, carte blanche, to hear any sort
of action in chambers and clearly does not apply to an action for a
declaration which depends on evidence being called on both sides. Even if
the English practice could be prayed in aid, it would not help, as there an
action for a declaration is brought by writ.
 235

It is clear that these proceedings have been misconceived. As the matter was
not properly before him the judge had no jurisdiction to make the
declarations requested even if he had been so disposed. The appeal must be
dismissed.
 236

NEW PLAST INDUSTRIES vs THE COMMISSIONER OF LANDS

AND ATTORNEY-GENERAL.

SUPREME COURT
SAKALA,AG. DCJ., CHIRWA AND LEWANIKA JJs
8th February AND 10th May 2001
SCZ No. 8 OF 2001

Flynote

Civil procedure - preliminary issue - judicial review.

Headnote

This was an appeal against the ruling of the High Court on a preliminary
issue. It was also an appeal against the refusal by the High Court to review
its ruling on the same preliminary issue. The brief facts were that the
appellant had obtained leave to apply for JudicialReview against a decision
of the acting Chief Registrar of Lands and Deeds dated 14th March 2000. In
her decision, the acting Chief Registrar cancelled entries numbered 3,4,5 and
6 in the Lands and Deeds Register in respect of property No. LUS/2758/A.
She further ordered that the title deed in the said property should revert to
the first respondent and that the appellant should surrender the certificate of
title previously issued to the appellant for cancellation. The action for
judicial review was commenced against four respondents.

Held:

(i) It is not entirely correct that the mode of commencement of any

action largely depends on the relief sought. The correct position is
that the mode of commencement of any action is generally provided
for by statute.

(ii) The White Book should only be resorted to if the Act was silent or
not fully comprehensive.

(iii) The action should have been brought by way of an appeal not
judicial review. Action should have followed the Lands and deeds
Act (Chibuta V. Chipata Rural Council followed).
 237

Appeal dismissed.

Cases referred to:

1. Chikuta Vs Chipata Rural Council (1974) ZR 241.

For the appellant Mr. R.M. Simeza of Simeza & Sangwa

Associates.

For the respondents Mr. J. Jalasi, State Advocate.

Judgment

Sakala, AG. Deputy Chief Justice, delivered the Judgment of the Court.

This is an appeal against a ruling of the High Court on a preliminary issue. It

is also an appeal against the refusal by the High Court to review its ruling on
the same preliminary issue. The short facts are that the appellant had
obtained leave to apply for Judicial Review against a decision of the Acting
Chief Registrar of Lands and Deeds Registry dated 14th March 2000. In her
decision, the Acting Chief Registrar had cancelled entries numbered 3,4,5
and 6 in the Lands and Deeds Register in respect of property No.
LUS/2758/A. She further ordered that the title deed in the said property
should revert to the first respondent and that the appellant should surrender
the certificate of title previously issued to the appellant for cancellation.

The action for Judicial Review was commenced against four respondents
namely; Sandra Nayame, first respondent, P.S Kinnear, second respondent
(sued in her personal capacity and as the Acting Registrar of Lands and
Deeds), the Commissioner of Lands, third respondent and the Attorney-
General as fourth respondent. The notice and the memorandum of appeal
only cited the Commissioner of Lands and the Attorney as first and second
respondents respectively. In the action, the appellant sought orders of
certiorari mandamus, declarations and damages.

The brief facts supporting the application for leave to apply for Judicial
Review were that the appellant entered into a lease agreement dated 16th
July, 1996 with one Joselyn Nayame in respect to her premises at Plot No.
2758A, Kamwala, Lusaka for a period of three years at an agreed rental of
K600,000 from 1st January 1997. The said Joselyn Nayame, not party to
 238

proceedings before the trial court, by an assignment in writing dated 29th

April 1999, transferred all the unexhausted improvements in the land in
extent 102 square meters of S/DA of plot 2758 Kamwala for a consideration
of K21, 600,000:00. This transaction was duly registered in the Lands and
Deeds Register on 20th April 1999. Consequent upon this assignment, a
certificate of title No. L2904 of the same date was issued to the appellant.
On 14th March 2000, the Acting Chief Registrar of Lands and Deeds
Registry, the second respondent in the application at trial, advised the
appellant in writing that she had taken steps to cancel entries numbered 3,4,5
and 6 in the Lands and Deeds Registrar in respect of S/DA of Plot No.
2758A, Kamwala, Lusaka on an allegation by Sandra Nayame, the first
respondent in the application, to Joselyn Nayame (not a party to the
proceedings) was fraudulently procured and that the appellant should
surrender back the title deed to be reverted to first respondent, Sandra
Nayame. On 22nd March 2000, the advocates for the appellant wrote the
Acting Chief Registrar to reverse the cancellations, which were made by the
Commissioner of Lands. The Acting Chief Registrar declined and advised
that the appellant should seek recourse in a court of law.

We have deliberately delved into the facts of this matter to highlight the
issues involved in the main action to ascertain whether, on the substantive
issues, counsel for the second, third and fourth respondents raised a
preliminary issue namely, that the Lands and Deeds Registry Act provided
for a procedure under Section 87 for appealing against a decision of the
Chief Registrar. The gist of the submission before the High Court was that
the commencement of an action by way of Judicial Review was improper
and did not comply with the procedure provided under the Lands and Deeds
Registry Act. Suffice it to mention that Mr. Simeza, who also appeared for
the appellant at the High Court, vehemently opposed the preliminary issue
on ground that Section 87 of the Lands and Deeds Registry Act did not
provide for procedure appeal. The learned trial Judge considered the
submissions on the preliminary issue. After perusing Section 89 of the Lands
and Deeds Registry is adequately provided for under the Act and that
Section 87 of the Act was specific. It provided that any aggrieved party may
appeal to the High Court following the procedure in appeals from the
Subordinate Court to the High Court. The court found that Judicial Review
was a mode of commencing an action while the procedure provided under
the Land and Deeds Registry Act is a mode of appeal. The court concluded
that the appellant had adopted an erroneous and irregular procedure. The
preliminary issue was upheld. The whole action was dismissed with cost.
 239

After the ruling of the court dismissing the whole action on a preliminary
issue, the appellant applied to court to review its judgment pursuant Order
39 (1) of the High Court Rules. Before the summons could be uplifted and
without hearing the appellant, the court dismissed the application on the
same ground that the application for Judicial Review was irregular.

Mr. Simeza, on behalf of the appellant, filed written heads of argument

based on three grounds but not argued in the order as per written heads. The
first ground argued was that the learned trial Judge erred in law when she
held that notwithstanding the relief sought in the application for Judicial
Review, the procedure used and sought was improper and irregular and
dismissed the application for Judicial Review. The gist of submission on this
ground was that the mode of commencement of proceedings largely by the
relief sought. The argument by Mr. Simeza was that if one sought the
prerogative remedies in public law, such as certiorari, mandamus or
prohibition, such remedies can only be obtained in an action for Judicial
Review as an ordinary writ or indeed an appeal may not be appropriate for
such action.

In countering the submission by Mr. Simeza, Mr. Jalasi supported the

learned trial Judge as having been on firm ground when she held that the
application for Judicial Review was improper and irregular. Mr. Jalasi
contended that the provisions of Sections 87 and 89 of the Lands and Deeds
Registry Act, Cap 185 are very clear. They provide for a procedure to be
followed by a party aggrieved by a decision of the Registrar in respect of
any application under the Lands and Deeds Registry Act. Mr. Jalasi
submitted that in terms if Section10 of the High Court Act, the appellant
should not have rushed to the aid of Order 53 for Judicial Review under the
White Book when the provisions of the Lands and Deeds Registry Act were
self-explanatory.

We have considered the submissions on this ground. In our view, it is not

entirely correct that the mode of commencement of any action largely
depends on the relief sought. The correct position is that the relevant statute
generally provides the mode of commencement of any action. Thus, where a
statute provides for the procedure of commencing an action, a party has no
option but to abide by that procedure. Section 10 of the High Court Act, Cap
27 is couched in very clear terms on the issue of practice procedure. The
Section reads: -
 240

“10. The jurisdiction vested in the Court shall, as regards practice and
procedure, be exercised in the manner provided by this Act and the Criminal
Procedure Code, or any other written law, or by such rules, order or
directions of the Court as may be made under this Act, or the said Code, or
such written law, and in default thereof in substantial conformity with the
law and practice for the time being observed in England in the High Court of
Justice.”

The arguments by Mr. Jalasi were that Section 87 of the Lands and Deeds
Registry Act, Cap 185 provides practice and procedure under that Act of
commencing actions by any aggrieved party. This Section reads: -

“87. If the Registrar refuses to perform any act or duty which he is required
or empowered by this Act to perform, or if a Registered Proprietor or other
interested person is dissatisfied with the direction or decision of the
Registrar in respect of any application, claim, matter or thing under this Act,
the person deeming himself aggrieved may appeal to the Court.”

Section 89 of the same Act provides for a procedure by way of appeal. There
is, therefore, no default in practice in matters falling under the Lands and
Deeds Registry Act. There is no choice between commencing an action by
an application for Judicial Review or by an appeal.

We are satisfied that the practice and procedure in the High Court is laid
down in the Lands and Deeds Registry Act. The English White Book could
only be resorted to if the Act was silent or not fully comprehensive. We
therefore hold that this matter having been brought to the High Court by way
of Judicial Review, when it should have been commenced by way of an
appeal, the court had no jurisdiction to make the relief’s sought. This was the
stand taken by this court in Chikuta Vs Rural Council (1), where we said
that there is no case in the High Court where there is a choice between
commencing an action by a writ of summons. We held in that case that
where any matter is brought to the High Court by means of an originating
summons when it should have been commenced by a writ, the court has no
jurisdiction to make any declarations. The same comparison is applicable
here. Thus, where any matter under the Lands and Deeds Act is brought to
the High Court by means of Judicial Review when it should have been
brought by way of an appeal, the court has no jurisdiction to grant the
remedies sought. On this ground alone, this appeal cannot succeed. It
 241

therefore becomes unnecessary for us to consider the ground of appeal,

which stated that the learned judge misdirected herself in law when she held
that the procedure on appeal form the decision of the Registrar of Lands and
Deeds is spelt out in Section 89 of Cap 185. We uphold the learned trial
Judge on this issue as well.

The last ground argued was that the learned trial Judge erred in law
dismissing the application for review without affording the parties a hearing.
The submission was that the denial of parties to be physically heard
infringed the rules of natural justice of the parties’ right to be heard. This
submission in our view over looked the fact that the application was
supported by an affidavit sworn by counsel for the appellant himself in
which he was then urging the court to review its ruling and to continue the
proceedings as if they had been begun by a writ. In the affidavit, counsel had
further deposed that there were so clearly spelt out rules on procedure of
appeal from the decision of the Registrar to the High Court.

In a short ruling the court reiterated its earlier decision that the procedure
used was improper and irregular. The court referred to Section 89 in which
the procedure is spelt out. We wish to take advantage of the present appeal
to make the point that the content if what amounts to the hearing of the
parties in any proceedings can take either the form of oral or written
evidence. This depends on the nature of the application. Where the evidence
in support of an application is by way of affidavit, the deponent cannot be
heard to say that he was denied the right to a hearing simply because he had
not adduced oral evidence. According to Practice Direction No. 11 of 12th
January 1968, in “ all Ex-parte applications… The affidavit of facts
supporting the application… shall be left with the Assistant Registrar…
There will be no need for the application to attend unless a Judge or
Registrar otherwise directs… The Judges decision will be endorsed on the
affidavit…”

On the facts presented by the appellant’s application on review, there was no

need for the parties to have presented oral evidence or oral submissions. The
affidavit by counsel himself was adequate. On the other hand, the nature of
these proceedings did not allow the court to treat them as begun by a writ as
the procedure allowed is that by way of appeal.
 242

In the final review analysis there is no leg on which this appeal can succeed.
It is dismissed with costs. The appellant is, however, at liberty to commence
the proceedings afresh following the procedure allowed by law.
 243

MOHAMED S. ITOWALA v VARIETY BUREAU DE CHANGE

Supreme Court
Ngulube, C.J, Lewanika, Ag D.C.J. and Chaila J.S.
13th September 2001 and 13 December 2001
SCZ Judgment No. 15 of 2001)

Flynote

Contract –Illegality – features of a legally objectionable contract- Effect of

on valid title.

Headnote

The appellant a businessman was apparently in the habit of purchasing

dollars from the respondent’s Bureau de Change. The transaction leading to
the action took place on the 22nd day of March, 1999. When the appellant
went to the respondent’s bureau and gave to the respondent’s a sum of K24
million for the purchase of US$ 10,000.00. The employee issued two
receipts for K12 million each and each worth US$ 5,000.00. The respondent
did not give the appellant the US$ 10,000.00 and refused to refund the K24
million arguing that the transaction was tainted with illegality. The illegality
claimed was based on a circular issued by the Bank of Zambia to all
Bureaux de change. The circular directed that transactions with individuals
should not exceed the equivalent of US$5,000.00 per transaction per day in
whatever currency. The appellant launched proceedings in the subordinate
court to recover the K24 million paid on a transaction which had wholly
failed. The learned trial magistrate held that the respondent was truly and
justly indebted to the appellant in the amount claimed. As a result of the
judgment granted by the magistrate’s court the respondent appealed to a
Judge of the High Court. The learned judge accepted the argument of the
respondent that because the transaction involving US$ 10,000 was contrary
to the directive of the Bank of Zambia it was illegal and accordingly the
maxim exturpi causa non aritur actio (meaning no disgraceful matter can
ground an action) would apply. The appellant appealed against the
judgment of the learned judge.
 244

Held:

(i) A party cannot sue upon a contract if both knew that the purpose,
the manner of performance and participation in the performance of
the contract necessarily involved the commission of an act which to
their knowledge is legally objectionable.

(ii) The appellant’s title to his money is unaffected and did not result
from an illegal transaction.

M. Ndhlovu of Messrs Central Chambers, for the appellant.

N.K. Mutuna of Messrs NKM and Associates, for the respondent.

Judgment

NGULUBE, C.J, delivered the judgment of the Court.

Judge Chaila whose death is a grievous loss to the court died before he could
append his signature to this judgment which was to have been a unanimous
decision. It may now be treated as one by the majority. On 13th September,
2001, when we heard this appeal we allowed it with costs and said we would
give our reasons later. This we now do. For convenience we will continue
to refer to the appellant as the plaintiff and the respondent as the defendant.

The facts of the case can be stated very briefly. The plaintiff, a business
man, was apparently in the habit of purchasing dollars from the defendant’s
Bureau de Change. The transaction leading to the action took place on the
22nd day of March, 1999, when the plaintiff went to the defendant’s bureau
and gave the defendant’s employee one Mrs Hallen Melu a sum of K24
million for the purchase of 10,000 dollars. The employee preferred to issue
two receipts for K12 million each and each was worth 5,000 dollars at the
exchange rate then prevailing of K2,400 per dollar. The employee further
endorsed on the receipts that the money in dollars should be collected by the
plaintiff in the morning of the next day. The defendant did not give the
10,000 dollars to the plaintiff. In addition, the defendant did not refund the
money to the plaintiff. As a result, the plaintiff launched proceedings in the
Subordinate Court before the learned Principal Resident Magistrate. He
issued a default writ of summons to recover the K24 million which had
been paid on a transaction which had wholly failed. The defendant pleaded
that the transaction was tainted by illegality so that the money should not be
 245

refunded. It was the argument of the defendant that when the cashier, Mrs
Melu, allowed the plaintiff to purchase 10,000 dollars, she had allowed a
purchase in excess of the limit which she was allowed. In the circumstances,
she was doing something which was prohibited. The learned trial Magistrate
would have none of this holding that the employee was acting in the proper
course of her employment and that, therefore, the defendant was truly and
justly indebted to the plaintiff in the amount claimed. It was the opinion of
the learned trial magistrate that since what the cashier did was within the
scope of her proper employment, it was within the course of such
employment and that it was immaterial whether or not the plaintiff was
aware of the alleged authorized limit. The illegality was based on a circular
from the Bank of Zambia to all Bureaux de Change in the Country. Acting
under statutory powers of supervising the banking and financial sector, the
Central Bank had issued a circular on 26th October, 1998, addressed to all
Chief Executive Officers of Bereaux de Change, banks and non Bank
Financial Institutions. In that circular the bank drew attention to the
increasing phenomenon of money laundering activities throughout the world
through bureau de change. The Central Bank Governor pointed out that the
bureau de change had become a possible avenue through which money
laundering transactions could pass undetected. He outlined the need to join
the worldwide efforts to combat money laundering. In addition, the
Governor of the Bank of Zambia pointed out the increases of armed banditry
directed at Bureaux de Change with the danger posed to the lives of those
operating the bureau as well as the public. For these reasons – as the
Governor said in the circular – the Bank was directing that Bureau de
Change transactions with individuals or persons shall not exceed the
equivalent of 5, 000 dollars per transaction per day in whatever currency.
The bank directed that all transactions exceeding such amounts must be
transacted through a Commercial Bank which was duly registered under the
relevant Act. In the background explanation in the circular the Bank had
observed that Commercial Banks at least tried to know their customers and
would probably be on the look out against money laundering unlike the
Bureaux. That was the illegality relied upon by the defendant to resist
refunding the money. As a result of the judgment granted by the Magistrate’
Court, the defendant appealed to a judge of the High Court. The learned
trial judge accepted the argument of the defendant that because the
transaction involving 10,000 dollars was contrary to the directive of the
Bank of Zambia, it was illegal and accordingly the maxim ex turpi causa non
oritur actio (meaning no disgraceful matter can ground an action) would
apply. The learned judge was satisfied that although this was a mere
 246

directive under statutory powers what the plaintiff did in trying to buy
10,000 dollars at one go instead of 5,000 dollars per transaction per day was
forbidden by law and therefore illegal. And for some reason which is not
manifestly clear on the facts of the record, the learned judge also considered
that the plaintiff and the cashier must have intended to defraud the
defendant. As we say it is not clear how this could have been so since
undoubtedly the plaintiff could have quite properly gone everyday and
bought 5, 000 dollars per transaction per day without infringing any
directive at all. The finding of fraud was in fact without support whatsoever
and cannot be allowed to stand.

However, the matter does not rest there. The invocation of the maxim ex
turpi causa appears to have been misdirected. We wish to take the
opportunity to reaffirm as do the learned authors of Chitty On Contracts,
“General Principles”, 26th Edition, in paragraph 1257, that when a
contractual right is said to be unenforceable on the ground that ex turpi causa
non oritur actio this is an illustration of the general principles of the law
regarding the effect of illegality on the formation performance and
enforcement of a contract. In this regard sight should not be lost of the fact
that the plaintiff at no time sued for the payment of 10,000 dollars which he
had set out to buy. He simply sued to recover his money. We wish to draw
attention to paragraph 1138 of the same Chitty On Contracts in which the
Position at common law is discussed. The authors observe under the sub
heading “Both parties aware of legally objectionable features.” “Neither
party can sue upon a contract if”:

(a) both knew that it necessarily involved the commission of an act which, to
their knowledge, is legally objectionable, that is illegal or otherwise against
public policy, or

(b) both knew that the contract is intended to be performed in a manner

which, to their knowledge is legally objectionable in that sense, or

(c) the purpose of the contract is legally objectionable and that purpose is
shared by both parties, or

(d) both participate in performing the contract in a manner which they know
to be legally objectionable.”
 247

All the foregoing is an assumption that in fact there was an illegal

transaction. The directive for the purpose of countering money laundering
and robberies was addressed to persons in the position of the defendant. It
was not addressed to the public at large so that quite clearly there can be no
suggestion that the plaintiff was aware of the circular. Indeed he said so in
his evidence, that he was not so aware. The parties were therefore not both
aware nor did they both intend to perform something illegal. In this
particular case even assuming that the plaintiff was aware of the illegality
and was trying to perform an illegal contract, the illegality would only have
been in respect of the excess 5,000 dollars and not the entire amount of
money. But in fact there was no occasion to assume that the appellant
intended an illegal way of doing anything. It was clearly a misdirection to
find that there was any question of anyone trying to defraud anyone else
when the plaintiff applied to buy dollars. We also wish to draw attention to
paragraphs 1275 to 1277 of the same Chitty On Contracts where they
discuss among other things the question of Locus Poenitentiae if the plaintiff
because the transaction is frustrated repents of it altogether he is free to
recover his money. The plaintiff’s title to his money is unaffected and did
not result from an illegal transaction. Quite clearly he did not obtain K24
million from an illegal transaction. In the circumstances of this case,
therefore, it could not be said the money became irrecoverable. The plaintiff
did not need the alleged illegal transaction in order to found his cause of
action based on his clear title to the K24 million which must be paid back to
him. It would have been exceedingly strange if in fact it could be properly
accepted that the other party to the transaction could pocket the money and
benefit from the alleged illegality.

It was for the foregoing reasons that we allowed the appeal and dismissed all
the arguments which sought to rely on the maxim ex turpi causa and which
sought to persuade that the defendant could simply pocket the other person’s
money. We must point out that we have no quarrel with the cases and
authorities which were cited on the subject of illegal contracts; but in the
view that we take, it is here unnecessary to recite those authorities and cases
because as pointed out in the quotations from Chitty those principles ought
not have been upheld in this case.

The costs will be taxed if not agreed.

Appeal allowed
 248

KACHASU v ATTORNEY-GENERAL (1967) Z.R. 145 (H.C.)

HIGH COURT
BLAGDEN, J.
10TH NOVEMBER, 1967

Flynote and Headnote

[1] Courts - High Court - Jurisdiction - Validity of legislation

under section 28 of the Constitution.

The High Court has no jurisdiction under section 28 of the Constitution to

make any order where the complaint merely states that a regulation is invalid
or that something done under it is unlawful because of a conflict with the
provisions of the Constitution.

[2] Courts - High Court - Jurisdiction - Validity of legislation

under section 28 of the Constitution.

For the purpose of exercising jurisdiction under section 28 of the

Constitution, the High Court may determine the validity, effect and
application of legislation, where the complaint is that a breach of the
protective provisions of the Constitution has been brought about in part by
that legislation or anything done under it.

[3] Constitutional law - Section 28 of the Constitution -

Jurisdiction of the High Court. See [1] and [2] above.

[4] Jurisprudence - Duty to obey valid law - Conscientious

objection or religious scruples.

If a duty is imposed by a valid law and the breach of that duty is made subject
to certain consequences, a person who is charged with such breach cannot set
up as a defence that he has a conscientious objection or religious scruple
against performing that duty.

[5] Education - Subject of instruction - Section 12 of the Education

Act, 1966, and regulation 25 of the Education (Primary and
Secondary Schools) Regulations, 1966, construed.

The provisions of Regulation 25 ( 1 ) (a) of the Education (Primary and

Secondary Schools) Regulations, 1966, as to the singing of the National
Anthem and the manner in which pupils should behave on occasions when the
national flag is flown are provisions for a "subject of instruction" within the
meaning of section 12 (1) of the Education Act, 1966.
 249

[6] Education - Religious beliefs of pupils - Sections 24 and 25 of

the Education Act, 1966, and regulation 31 (1) (d ) of the
Education (Primary and Secondary Schools) Regulations,
1966, construed.

There is no conflict between regulation 31 (1) (d) and the provisions of

sections 24 and 25 of the Education Act, 1966.

[7] Education - Refusal of admission - The Education Act, 1966,

section 24 construed - What constitutes refusal to admit a
pupil on the grounds of religion.

Refusal to readmit a student because she failed to take part in ceremonies

involving the worship of the national flag or the singing of the national
anthem did not constitute refusal to admit a student on the grounds of religion
and, thus, did not violate section 24 of the Education Act, 1966.

[8] Education - Religious ceremony or observance - The Education

Act, 1966 - Section 25 construed - Nature of the test to be used
to determine whether a ceremony is religious in nature.

Although a subjective test may be used in determining whether one holds a

religious opinion, an objective test must be used in determining whether a
ceremony or observance is religious in nature.

[9] Education - Religious ceremony or observance - The Education

Act, 1966, section 25 construed - Meaning of the phrase
"religious ceremony or observance".

On the basis of an objective test, the singing of the national anthem and the
saluting of the national flag are not religious ceremonies or observances.

[10] Constitutional law - Freedom of conscience - What constitutes

a religious ceremony or observance. See [8] and [9] above.

[11] Courts - High Court - Jurisdiction - Redress under section 28

of the Constitution.

In order for the High Court to grant redress under section 28 of the
Constitution, the applicant must satisfy the court that he has been, or is being,
or is likely to be hindered in the enjoyment of his fundamental rights and
freedoms without his consent.

[12] Constitutional law - Section 28 of the Constitution -

Jurisdiction of the High Court. See [11] above.
 250

[13] Constitutional law - Freedom of conscience - Type of action

necessary to constitute a contravention of section 21 of the
Constitution.

There may be a breach of a person's right to freedom of conscience if there is

even a slight degree of hindrance in his, enjoyment of freedom of conscience
or religious thought.

[14] Constitutional law - Freedom of conscience - Hindrance of

enjoyment of freedom of conscience - Section 21 of the
Constitution construed.

A person is hindered in the enjoyment of his freedom of conscience by being

put under coercion to sing the national anthem against her religious beliefs,
and by being suspended from any Government or aided school because of her
refusal, on religious grounds, to sing the national anthem or salute the
national flag.

[15] Evidence - Presumptions - Constitutionality of ministerial

rules.

The presumption that the Legislature has acted constitutionally, and that the
laws which it has passed are necessary and reasonable, extends to rules made
by a minister under statutory powers conferred on him by the Legislature.

[16] Evidence - Burden of proof - Applicability of section 21 (5) of

the Constitution.

The applicant, under section 28 of the Constitution, has the burden of proving
that a challenged regulation is not saved by any of the provisions of section
21 (5) or that the challenged regulation is not reasonably justifiable in a
democratic society.

[17] Constitutional law - Section 28 of the Constitution -

Applicant's burden of proof. See [16] above.

[18] Constitutional law - Freedom of conscience - Meaning of

"reasonably required in interests of republic defence and
public safety or to protect the rights and freedoms of others"
in section 21 (5) of the Constitution.

A regulation requiring children in Government schools to sing the national

anthem and to salute the national flag is reasonably required in the interests
 251

of defence, public safety and for the purpose of protecting the rights and
freedoms of others.

[19] Constitutional law - Chapter III - Savings clauses - Weight of

legislative opinion.

In determining whether a law or regulation is reasonably required in the

interests of defence, public safety, public order, public morality, public health
or for the purpose of protecting the rights and freedoms of other persons, the
High Court must give due weight to the opinion of the Legislature as
expressed in the legislation.

[20] Constitutional law - Freedom of conscience - meaning of

"reasonably justifiable in a democratic society" in section 91
(5) of the Constitution.

A regulation requiring pupils in Government schools to sing the national

anthem and to salute the national flag, and a regulation giving the head of a
school the power to suspend for failure to do so, are both reasonably
justifiable in undemocratic society.

Cases cited:
(1) Minersville School Dist. v Gobitis, 310 US 686 (1940).
(2) R. v Downes (1875) 1 Q.B.D. 25.
(3) R. v Senior [1899] 1 Q.B. 283.
(4) Baxter v Langley (1869) 38 L.J. (M.C.) 1.
(5) Zavilla v Masse, 112 Colorado 183 (1944).
(6) Sheldon v Tannin, 221 F. Supp. 766 (1963).
(7) W. Va State Bd of Edu. v Barnette, 319 U.S. 624 (1943).
(8) Donald v Bd of Educ. of the City of Hamilton, 1945 Ontario 518.
(9) New York v Sandstrom, 279 N.Y. 523 (1939).
(10) Adegbenro v Akintola [1963] A.C. 614.
(11) Troika v Gov. N. Region (1961) All N.L.R. 379.
(12) Cheranci v Cheranci (1960) N.R.L.R. 24.
(13) D.P.P. v Obi (1961) All N.L.R. 186.

Statutes and regulations construed:

Constitution of Zambia (Chapter III), ss. 13, 21 and 28.
The Education (Primary and Secondary Schools) Regulations, 1966, reg 25
and 31 (1) (d).
The Education Act, 1966 (No. 28 of 1966), ss. 12 (1) (6), 24 and 25.

For the applicant: Smith Q.C., and Platt.

For the respondent: Skinner, Att - Gen and O'Grady, State Advocate.

___________________________
 252

Judgment

BLAGDEN, J.: This is an application brought by Feliya Kachasu, a young girl

aged between eleven and twelve years (whom I shall continue to refer to as
"the applicant"), suing through her father, Paul Kachasu, as next friend, asking
the High Court for an order against the State. The Attorney-General appears
as respondent to the application in accordance with the provisions of the State
Proceedings Act, 196.5, section 12 (1).

The application is brought by way of originating notice of motion and

although not so directly expressed it is an application for redress under section
28 of the Constitution. This section relates to the enforcement of the
provisions of sections 13 to 26 (inclusive) of the Constitution - usually known
as the protective provisions - which guarantee the protection of the
fundamental rights and freedoms of the individual.

Omitting provisions and words not relevant to the instant application, section
28 of the Constitution reads as follows:

"28. (1) . . . if any person alleges that, any of the provisions of sections 13
to 26 (inclusive) of this Constitution has been, is being or is likely to be
contravened in relation to him, then, without prejudice to any other action
with respect to the same matter which is lawfully available, that person may
apply to the High Court for redress.

p149

(2) The High Court shall have original jurisdiction -

(a) to hear and determine any application made by any person in

pursuance of subsection (1) of this section; . . .
and may make such orders, issue such writs and give such
directions as it may consider appropriate for the purpose of enforcing or
securing the enforcement of any of the provisions of sections 13 to 26
(inclusive) of this Constitution."

I should perhaps point out that subsection (7) of section 28 gives authority for
the making of rules to regulate the practice and procedure in respect of
proceedings under section 28. None have so far been made. In their absence
High Court Rules, Order 7, rule 1 (c) applies, which provides that:

"Any application to be made to the Court in respect of which no special

procedure has been provided by any law or by these rules shall be commenced
by an originating notice of motion."
 253

This is the procedure that has been adopted here. At the start of the trial, after
hearing argument, I allowed Mr Richmond Smith to amend his originating
notice of motion. The Attorney-General raised certain jurisdictional objections
to the originating notice of motion in its amended form - objections which
would have also applied to the notice in its original form. I shall revert to
these objections later in my judgment.

To appreciate the nature of the relief which the applicant is seeking, it is

necessary first to consider the facts. These are simple and substantially not in
dispute.

Paul Kachasu, the applicant's father and next friend, is a Jehovah's Witness
and has been such for a number of years. In 1961 he was appointed a
congregation overseer. The applicant herself has been brought up in the
religion of Jehovah's Witnesses and she has been taught that it is against God's
law to worship idols or to sing songs of praise or hymns to other than Jehovah
God Himself. She and her father and many other Jehovah's Witnesses regard
the singing of the national anthem as the singing of a hymn or prayer to
someone other than Jehovah God Himself; they also regard the saluting of the
national flag as worshipping an idol. To them the singing of the national
anthem and the saluting of the national flag are religious ceremonies or
observances in which they cannot actively take part, because these
ceremonies are in conflict with their own religious views and beliefs.

Let me make it clear at this point that the State does not challenge the
sincerity of these views and beliefs. It is fully accepted that the applicant and
her father and other Jehovah's Witnesses sincerely and genuinely believe that
the singing of the national anthem and the saluting of the national flag are
religious ceremonies or observances and that it is contrary to their religion for
them to take active part in them. Likewise, there is no suggestion in this case
of Jehovah's Witnesses intending any disrespect to the national anthem or the
national flag by their actions.

p150

The applicant has been schooling, without any complaints as to her conduct,
since 1963 up to the time of the events which have given rise to these
proceedings. On the 2nd September, 1966, there was brought into force The
Education (Primary and Secondary Schools) Regulations, 1966. In this
judgment I shall continue to refer to these regulations as "the Regulations";
and when I refer to a regulation by its number only it will be to that numbered
regulation of the Regulations.

The Regulations apply only to Government or aided schools at which primary

or secondary education is provided (see regulation 3 (1)). By regulation 25,
pupils at these schools are required to sing the national anthem and salute the
 254

national flag on certain occasions. By regulation 31 (1) (d), the head of a

school is empowered to suspend from attendance at the school any pupil who
wilfully refuses to sing the national anthem or to salute the national flag when
lawfully required to do so.

In October, 1966, the applicant refused to sing the national anthem and she
was suspended from the school. There followed some interviews between the
applicant's father and the school authorities, in the course of which the father
endeavoured to explain that the reason for the applicant's refusal to sing the
national anthem was that it was against her religious conscience to do so. He
asked for her to be reinstated at the school and to be excused from singing the
national anthem or saluting the national flag. It was made clear to him,
however, that the applicant could not be readmitted to school unless she
agreed to comply with the regulations and sing the national anthem and salute
the national flag when required to do so. She has not attended school since.

By her notice of motion the applicant is now asking the court to say that her
suspension was unlawful, and that she is entitled to readmission to the school
without having to give any undertaking that she will sing the national anthem
or salute the national flag.

The notice also sets out the grounds on which the applicant bases her claim.
The full text of the notice is as follows:

"TAKE NOTICE that the High Court of Zambia will be moved at Lusaka
on Wednesday the 4th day of October, 1967 at 9 o'clock in the forenoon or so
soon thereafter as Counsel for the above mentioned Applicant can be heard for
an ORDER that:

(1) The suspension of Feliya Kachasu from Buyantanshi School,

Mufulira in the Republic of Zambia on the 31st day of October 1966 and
continuing to the date hereof is unlawful and that the said Feliya Kachasu is
lawfully entitled to return to Buyantanshi School, Mufulira aforesaid at the
soonest possible date hereafter without any let or hindrance and be excused on
religious grounds from saluting the Zambian National Flag and from singing
the Zambian National Anthem.

p151

ON THE GROUNDS THAT:

(a) The said suspension constitutes a hindrance in the enjoyment of

her freedom of conscience, which includes freedom of thought and of religion
as provided in Chapter III of the Constitution of Zambia.
(b) Regulation 25 of the Education (Primary and Secondary Schools)
Regulations 1966 is invalid, null and void because
 255

(i) it is ultra vires Section 12 of the Education Act 1966 in that

the content thereof does not bring it within the scope of any of the specified
objects or purposes set out in Section 12 of the Education Act, 1966 for the
purposes of which the Minister may make such regulations
(ii) It is in conflict with Section 21 of the Constitution

(c) Regulation 31 (1) (d) of the Education (Primary and Secondary

Schools) Regulations is invalid in that it is IN CONFLICT with Part VI
Section 24 and 25 of the Education Act 1966 and Section 21 of the
Constitution.
(d) For the purposes of Section 21 of the Constitution the test as to
what constitutes a religious ceremony observance or instruction is a subjective
test and not an objective test.

AND FOR SUCH FURTHER Orders and Directions as this Honourable

Court may consider appropriate."

In the American case of Minersville School Dist. v Gobitis [1], which

concerned the refusal of two Jehovah's Witness pupils to participate in the flag
salute ceremony at their school, Frankfurter, J, opened his judgment with the
following words:

"A grave responsibility confronts this Court whenever in course of

litigation it must reconcile the conflicting claims of liberty and authority. But
when the liberty invoked is liberty of conscience, and the authority is
authority to safeguard the nation's fellowship, judicial conscience is put to its
severest test . . ."

That is very much the situation before me here.

It will be seen that the applicant's case raises two main issues. I state them in
the order in which they are introduced by the originating notice of motion.

The first main issue is what I will call the constitutional issue. The applicant
claims that her suspension from school and, it would follow the refusal of her
application for unconditional readmission thereto, constitute a hindrance in the
enjoyment of her right to freedom of conscience thought, and religion,
guaranteed to her by sections 13 and 21 of the Constitution. Further, she
claims that the regulations under which she

p152

came to be suspended - that is, regulations 25 and 31 (1) (d) - are themselves
in conflict with section 21 of the Constitution, and consequently invalid.
 256

The second main issue I shall describe as the legislative issue. The applicant's
case here quite simply is that regulations 25 and 31 (1) (d) are invalid because
they are in conflict with the Education Act, 1966, under which they were
made.

I propose to deal with the legislative issue first. It is in this field that the
jurisdictional objections raised by the Attorney-General upon Mr Richmond
Smith's application to amend the originating notice of motion are relevant.

[1] [2] [3] The Attorney-General put his objections in this way: accepting that
this application is an application to the High Court for redress under the
special jurisdiction conferred upon it by section 28 of the Constitution, then
the court is strictly limited to the jurisdiction so conferred. I have already
quoted the relevant words of section 28. Briefly, the jurisdiction is to hear and
determine any application alleging breach of the protective provisions and to
make whatever orders are appropriate for the enforcement of those provisions.
The Attorney-General pointed out that the section also specifically preserved
the subject's right to pursue other remedies lawfully available to him; and he
submitted that the court had no jurisdiction under section 28 of the
Constitution to make any order where the complaint was simply that a
regulation was invalid or something done under it was unlawful because of a
conflict not with the protective provisions, but with the provision of some Act.
I agre. Section 28 confers a special jurisdiction; and the court must not stray
outside it. But, for the purposes of exercising that jurisdiction it may, and
indeed in most cases it will, be necessary to determine the validity, effect and
application of legislation, where the complaint is, as here, that a breach of the
protective provisions has been brought about in part by that legislation or
anything done under it. Moreover, the State itself relies on the relevant
legislation here - namely, regulations 25 and 31 (1) (d) - as justifying what
was done in this case.

I found against the Attorney-General's objections to the form of the amended

notice of motion but I left open for farther argument, if necessary, the question
as to whether the court had jurisdiction to grant the applicant any, and if so
what, relief on her application, if it transpired that her suspension or exclusion
from school was unlawful for reasons other than that there had been a
contravention of any of the protective provisions. In the event no further
argument on this question is required.

[4] So much for the jurisdictional objections. I pass on now to the substance of
the legislative issue. At the outset I would like to introduce a glimpse of what
may be obvious but which none the less may easily be overlooked. If a duty is
imposed by a valid law and the breach of that duty is made punishable or
subject to certain consequences, a person who

p153
 257

is charged with such breach cannot set up as a defence that he has a

conscientious objection or religious scruples against performing that duty (see
R v Downes [2]; R v Senior [3]).

Here, however, the applicant attacks the validity of both regulation 25 and
regulation 31 (1) (d), albeit for different reasons. I have already referred to
these regulations briefly. I must now consider them in some detail.

Regulation 25 reads as follows:

"25. (1) For the purpose of promoting national unity and a proper respect
for the National Anthem and the National Flag as the secular symbols of
national consciousness -

(a) Instruction shall be provided at all schools in the singing of the

National Anthem and in the proper manner in which pupils should behave on
formal occasions at which the National Anthem is played or sung or the
National Flag is down; and
(b) at all schools, pupils shall be required formally to sing the National
Anthem and to salute the National Flag on such occasions as the Head may,
subject to this regulation, determine.

(2) Whenever pupils are required in accordance with this regulation -

(a) formally to sing the National Anthem, the pupils shall sing the
National Anthem while standing at attention;
(b) formally to salute the National Flag, the pupils shall raise the right
hand to the temple with the open palm facing outwards while standing at
attention.
(3) Subject to the provisions of sub-regulation (4), the Minister may
give to the Head of a school such directions as he may consider necessary
with respect to the occasions on which pupils attending the school shall be
required to sing the National Anthem or salute the National Flag, and the
Head shall comply with those directions.
(4) No pupil shall be required to sing the National Anthem or to salute
the National Flag as part of any religious ceremony or observance."

On behalf of the applicant it is contended that this regulation is ultra virus the
rule making provisions of the Education Act. The relevant provision is section
12 (1) (b) which, omitting words of no application to the instant case, reads as
follows:

"12. (1) The Minister may make regulations -

 258

(b) prescribing and regulating . . . the subjects of instruction to

be provided...."

Mr Richmond Smith argued that regulation 25 did not prescribe any subject of
instruction to be provided. All it did was to prescribe a drill.

p154

[5] I do not agree. Regulation 25 (1) (a) clearly prescribes for the provision of
a subject of instruction - namely, "the singing of the National Anthem and the
proper manner in which pupils should behave on formal occasions at which
the National Anthem is played or sung or the National Flag is flown". That
may not amount to a very extensive subject, but it is a subject, and an
important one.

The regulation then goes on to prescribe the occasions when school pupils
should sing the national anthem and salute the national flag (regulation 25 (1)
(b)); and see also 25 (3); and then the manner in which they should sing the
national anthem (regulation 25 (2) (a)) and the manner in which they should
salute the national flag "regulation 25 (2) (b)). I agree that the manner so
prescribed in each case takes the form of a drill. But instruction by the method
of drill is not uncommon in schools; and the fact that some form of drill is
prescribed or used does not prevent instruction from being instruction.
Further, on this point I would accept Mr O'Grady's submission that the
prescription of this drill falls within the minister's power to make rules
"regulating" the subject of instruction which he has prescribed shall be
provided.

I find accordingly that regulation 25 is intra vires the Minister.

I come now to the consideration of regulation 31 (1) (d). Regulation. 31 is a

disciplinary regulation and deals, inter alia, with the suspension of pupils from
attendance at school. The provision which is attacked reads as follows:

"31.(1) Subject to the provisions of this regulation, the Head of a school

may suspend from attendance at the school -

(d) any pupil who wilfully refuses to sing the National Anthem or to
salute the National Flag when he is lawfully required to do so under these
Regulations."

It is claimed on behalf of the applicant that regulation 31 (1) (d) is invalid, in

that, to repeat the wording of the notice of motion, "it is in conflict with part
VI, sections 24 and 25 of the Education Act and section 21 of the
Constitution."
 259

I shall deal with the alleged conflict with the Constitution when I come to
consider the constitutional issue.

[6] Sections 24 and 95 of the Education Act, omitting words irrelevant to the
facts of the instant case, are in the following terms:

"24. No pupil shall be refused admission to any school . . . on the grounds

of his . . . religion.

25. If the parent of the pupil attending any school requests that he be
excused from . . .taking part in or attending any religious ceremony or
observance, then, until the request is withdrawn, the pupil shall be excused
therefrom accordingly."

I can see no conflict between regulation 31 (1) (d) and these sections, nor was
any real argument adduced in support of such a proposition.

p155

The argument that was put forward, as I understand it, was that in view of the
provisions of sections 24 and 25 of the Education Act and o what was done by
the applicant's father to invoke them, the applicant's suspension from school
or, at any rate, her continued suspension, was unlawful.

What the applicant's father did was to make representations to the school
authorities against their action in suspending the applicant and when these
failed he made an application by letter to the headmaster, for her
reinstatement. In this letter he specifically invoked the provisions of sections
24 and 25 of the Education Act and asked for her reinstatement - to quote the
actual words he used - "with the understanding that on religious grounds she
will be exempted from taking part in ceremonies involving the worship of the
National Flag or the singing of the National Prayer or Anthem." But the
headmaster still declined to reinstate her.

[7] I do not think section 24 affords the applicant any assistance here. She was
not refused readmission to the school because she was a Jehovah's Witness
but because she had been suspended for wilful refusal to sing the national
anthem and would not agree to do so or salute the national flag in the future. It
is true that her attitude in this regard was dictated by her religion. But this, at
best, only makes her religion a remote cause of her suspension and failure to
achieve reinstatement - a cause sine qua non perhaps, but not the cause
causans, the proximate cause, which is what must be looked at here. That
cause was the applicant's breach, and indicated continued breach, of regulation
25.
 260

[8] [10] Section 25 of the Education Act however, raises a different question.
The applicant is undoubtedly entitled under the provisions of this section to be
excused from participation or attendance at any religious ceremony or
observance if her father so requests. Her father has so requested in relation to
the ceremonies of singing the national anthem and saluting the national flag.

This brings me to one of the key questions of the whole case: is either the
singing of the national anthem or the saluting of the national flag a religious
ceremony or observance? This question the court must answer.

I have given consideration to the meaning of the words "ceremony" and

"observance". I think that in the context in which these terms are used here
"ceremony" connotes some continuity of performance, while "observance"
relates more to a specific act. I do not think, however, that the difference is of
any significance in the instant case. Both the singing of the National Anthem
and the saluting of the National Flag could be regarded either as ceremonies
or as observances. For convenience I shall continue to refer to them as
ceremonies.

What test should be applied to these two ceremonies to determine whether

they are religious or not?

I have been referred to a number of authorities and I would like to consider

some of these briefly. The oldest is Baxter v Langley [4], where the question
was whether a meeting, which was being held on certain

p156

premises on a Sunday, constituted an "entertainment or amusement", in which

case it contravened the provisions of the Sunday Observance Act, 1780; or
whether, as was contended for by the defence, it was a meeting for religious
worship. There was some difference of opinion between Mr Richmond Smith
and the Attorney-General as to whether the Court of Common Pleas in this
case had applied a subjective or an objective test, but I am satisfied that the
court resolved the issue on an objective test. It looked at what was done in this
particular hall on the Sunday in question. taking into account the expressed
intent of the defendant in holding the meeting, and came to the conclusion that
the meeting did not fall under the heading of "entertainment or amusement".

Again, Zavilla v Masse [5] was cited by both the applicant and the State on
this issue. This was a flag salute case involving Jehovah's Witnesses.
Headnote 6 to the report reads:

"A religious belief is purely subjective. Pupils may not rightfully be

expelled from school for their refusal to pledge allegiance to the United States
Flag and take part in patriotic exercises, where they entertain the opinion that
 261

such acts would be in violation of their religious beliefs, and courts may not
by judicial pronouncement, determine that the beliefs so entertained are not
religious opinions."

There is a passage in the judgment of the court delivered by Chief Justice

Young on pages 190-191, which suggests, however, that the court looked at
the actual flag salute ceremony itself objectively. Young, C.J., said:

"Plaintiffs, as we understand their position, do not assert, arbitrarily or

otherwise, that the saluting of the flag is a religious ceremony. We assume
that the salute is enjoined, as counsel for the board state, 'for the purpose of
engendering in the youthful mind, a love of country, respect for its institutions
and for constituted authority.' We think this is its purpose; that the rule was
adopted as a method or means to teach patriotism and that it is, and can have,
no other purpose in a school curriculum."

In Sheldon v Fannin [6], the court clearly adopted an objective test in regard
to the singing of the national anthem. Mathes, District Judge, delivering the
judgment of the United States District Court for the District of Arizona, said
(at page 13 of the photostat copy):

". . . the case at bar involves refusal to participate in a public school

classroom ceremony.... the plaintiffs first argue that the National Anthem
contains words of prayer, adoration and reverence for the Deity, and that a
state's prescription of participation therein amounts to a prohibited
'establishment of religion'. This contention must he rejected. The singing of
the National Anthem is not a religious but a patriotic ceremony intended to
inspire devotion to and love of a country. Any religious references therein are
incidental and expressive only of the faith which as a matter of historical fact
has inspired the growth of the nation."

The court, however, went on to decide the case in favour of the pupils,
relying, primarily on the leading U.S. Supreme Court decision of the

p157

W. Va. State Bd. of Educ. v Barnette [7]. Mathes, J., said (at page 14 of the
photostat copy):

". . . all who live under the protection of our Flag are free to believe
whatever they may choose to believe and to express that belief, within the
limits of free expression no matter how unfounded or even ludicrous the
professed belief may seem to others. While implicitly demanding that all
freedom of expression be exercised reasonably under the circumstances the
Constitution fortunately does not require that the beliefs or thoughts expressed
be reasonable, or wise, or even sensible. The First Amendment thus
 262

guarantees to the plaintiffs the right to claim that their objection to standing is
based on religious belief and the sincerity or reasonableness of this claim may
not be examined by this or any other court. Accepting, then, the plaintiffs'
characterisation of this conduct as religiously inspired, this case is ruled by the
W. Va. State Bd. of Educ. v Barnette, 319 U.S. 624 (1943), where the
Supreme Court held unconstitutional the expulsion of Jehovah's Witnesses
from a public school for refsal to recite the Pledge of Allegiance to the Flag."

In support of his submission that the subjective test was the proper one to be
applied, Mr Richmond Smith cited Zavilla [5], to which I have already
referred, where the court held that a religious opinion is purely subjective. Mr
Richmond Smith also cited the case of Donald v Bd. of Educ. of the Cite of
Hamilton [8]. a Canadian decision. This was another case of Jehovah's
Witness pupils who refused on religious principles to sing God Save the King,
or to repeat the Pledge of Allegiance or to salute the flag. The situation in this
case was in many respects very similar to that of the instant case. The
regulations required the singing of the national anthem as part of the daily
opening or closing exercises. At the same time there was also a legislative
provision that no pupil should be required to take part in any religious
exercises objected to by his parent or guardian. The pupils and their parents in
this case urged that, to them, both the flag salute and the singing of the
national anthem wer religious exercises to which they objected by reason of
their religious beliefs. Gillanders, JA, delivering the judgment of the court,
said at page 528:

"If I were permitted to be guided by my personal views, I would find it

difficult, to understand how any well disposed person could offer objection to
joining in such a salute on religious or other grounds. To me, a command to
join in the Flag salute or the singing of the National Anthem would be a
command not to join in any enforced religious exercises, but, viewed in proper
perspective, to join in an act of respect for a contrary principle, that is, to pay
respect to a nation and country which stands for religious freedom and the
principle that people may worship as they please, or not at all."

Gillanders, JA, went on to say that it would be misleading to proceed on any

personal views on what these exercises might include or exclude and he cited
from the judgment of Lehman, J, in New York v Sandstrom [9]:

p158

"There are many acts which are not acts of worship and which for most
men have no religious significance and are entirely unrelated to the practice of
any religious principles or tenet but which may involve a violation of an
obligation which other men may think is imposed upon them by divine
command or religious authority. To use a homely illustration, partaking of
food is ordinarily in no sense 'any approach to a religious observance', it is
 263

purely mundane, with no religious significance, yet ordinances establishing

fast days or prohibiting the use of certain kinds of food are a part of the
religion of many people."

A little later in his judgment, Gillanders, JA, said (at page 530):

"The fact that the appellants conscientiously believe the views which they
assert is not here in question. A considerable number of cases in other
jurisdictions, in which the same attitude to the Flag Salute has been taken,
indicates that at least the same view has been conscientiously held by others.
The statute, while it absolves pupils from joining in exercises of devotion or
religion to which they, or their parents, object, does not further define or
specify what such exercises are or include or exclude. Had it done so, other
considerations would apply. For the court to take to itself the right to say that
the exercises here in question had no religious or devotional significance
might well be for the court to deny that very religious freedom which the
statute is intended to provide."

I do not think it is necessary for me to refer to any more cases on this issue
although others were cited.

[9] [10] It is abundantly clear from these cases that where a religious opinion
is in question a subjective test must be applied. Indeed, it is impossible to test
something so personal as an opinion in any other way. But when the nature of
a ceremony or observance is in question it seems to me that a subjective test is
inappropriate and its application could lead to anomalous results. The
ceremony itself roust be looked at objectively, as it was in Baxter v Langley
[4] and Sheldon v Fannin [6], to which I have already referred. This is not to
say that the subjective views of those attending the ceremony are not to be
taken into account. They will carry considerable weight; but they will not
necessarily be decisive.

To take an objective view of the religious nature or otherwise of a ceremony

or observance is not easy. A judge charged with this duty must be careful not
to allow his own religious views to colour his judgment. In the present case, to
determine objectively whether the ceremonies of singing the national anthem
and saluting the national flag are religious ceremonies or not I have asked
myself three questions:

(1) By whom were these ceremonies instituted and with what objects?
(2) In the manner in which they are conducted are they invested with any of
the trappings of religious worships

p159

(3) Do the persons who attend these ceremonies regard them as religious?
 264

My answers to these questions are as follows:

(1) These ceremonies are instituted on the directions of the State and not of
any church or religious organisation. They form part of the instruction which
is to be provided in Government schools in how to behave on formal
occasions at which the national anthem is played or sung or the national flag
down; and their object, together with that instruction, is to promote national
unity and proper respect for the national anthem and the national flag as the
secular, not religious, symbols of national consciousness. Moreover, special
provision has been made that no pupil shall be required to participate in these
ceremonies as part of any religious ceremony or observance (see regulation 25
(4)).
(2) The ceremonies of singing the national anthem and saluting the national
flag are not invested with the trappings of religious worship. They are not
conducted by a priest, nor in a place of religious worship, nor is use made of
any equipment or books associated with religious worship.
(3) Some persons - notably the applicant and her Jehovah's Witness
colleagues genuinely and sincerely regard these ceremonies as religious.

Applying the objective test through the medium of these questions and
answers, I hold that, notwithstanding the views of the applicant and her
colleagues, the singing of the national anthem and saluting of the national flag
are not religious ceremonies or observances. It follows that the applicant's
claim that she is entitled to be excused from singing the national anthem and
saluting the national flag and in consequence reinstated at the school without
the obligation to participate in those ceremonies, by reason of the provisions
of section 25 of the Education Act, fails.

This concludes the determination of what I have called the legislative issue I
have held that regulation 25 is not beyond the rule making powers conferred
by section 12 of the Education Act and that neither regulation 31 (1) (d) nor
the applicant's suspension under that provision are in conflict with sections 24
or 25 of the Education Act.

I come now to the consideration of what I have described as the constitutional

issue in this case. I have already stated it in brief. I have been referred, in
relation to this issue, to a number of cases from various parts of the world. I
have derived considerable assistance from these authorities and I am indebted
to counsel on both sides for their industry in locating them. But I have also
borne in mind, as being particularly apt here, the words of Lord Raddcliffe in
Adegbenro v Akintola [10], where he

p160
 265

said, in relation to the study of decisions on the interpretation of the

constitutions of other countries:

". . . it is in the end the wording of the Constitution itself that is to be

interpreted and applied, and this wording can never be over-ridden by the
extraneous principles of other Constitutions which are not explicitly
incorporated in the formulas that have been chosen as the frame of this
Constitution."

[11] [12] Seclusion 28 of the Constitution. which I have already quoted,

empowers this court to grant redress to any person who proves to it that any of
the provisions of section 21 (amongst other sections) "has been, is being or is
likely to be contravened" in relation to such person. The opening words of
section 21 (1) are: "Except with his own consent, no person shall be hindered
in the enjoyment of his freedom of conscience . . ." It amounts to this, then,
that the applicant here has to satisfy the court that, without her own consent
she either has been, or is being, or is likely to be hindered in the enjoyment of
her freedom of conscience.

The applicant's case on this issue is that her suspension and continued
exclusion from school constitute such hindrance, and that the regulations
under which she was suspended - that is, regulation 25 and 31 (1) (d) - are
themselves in conflict with section 21 of the Constitution, and in consequence
invalid.

The resolution of this whole hinges primarily on the issue of the validity or
otherwise of regulation 25. Basically, regulations 25 and 31(1) (d) stand or fall
together. Regulation 25 makes compulsory the singing of the national anthem
and the saluting of the national flag in Government schools. If it is invalid,
then regulation 31 (1) (d), which imposes the penalty of suspension on pupils
who disobey, must be invalid too; and any order or suspension made under
this regulation must of necessity be unlawful. On the other hand, if regulation
25 is valid then it is likely that so also is regulation 31(1)(d), and that any
order of expulsion made properly and fairly under it will be lawful.

Section 21 of the Constitution is one of the protective provisions in Chapter

III of the Constitution, to which I have already referred. The opening section
of this chapter, section 13, reads:

"Whereas every person in Zambia is entitled to the fundamental rights and

freedoms of the individual, that is to say the rights whatever his race, place of
origin, political opinions, colour, creed or sex, but subject to respect for the
rights and freedoms of others, and for the public interest to each and all of the
following, namely -

(a) life, liberty, security of the person and the protection of the law;
 266

(b) freedom of conscience, of expression and of assembly and

association; and 4
(c) protection for the privacy of his home and other property and from
deprivation of property without compensation:

p161

the provisions of this Chapter shall have effect for the purpose of affording
protection to those rights and freedoms subject to such limitations of that
protection as are contained in those provisions, being limitations designed to
ensure that the enjoyment of the said rights and freedoms by any individual
does not prejudice the rights and freedoms of others or the public interest."

Section 21 deals specifically with the protection of the freedom of conscience.

It is divided into five subsections. Subsection (1) and (2) read as follows:

"(1) Except with his own consent, no person shall be hindered in the
enjoyment of his freedom of conscience, and for the purposes of this section
the said freedom includes freedom of thought and of religion, freedom to
change his religion or belief, and freedom, either alone or in community with
others, and both in public and in private, to manifest and propagate his
religion or belief in worship, teaching, practice and observance.
(2) Except with his own consent (or, if he is a minor, the consent of his
guardian) no person attending any place of education shall be required to
receive religious instruction or to take part in or attend any religious ceremony
or observance if that instruction, ceremony or observance relates to a religion
other than his own."

I omit subsections (3) and (4) because they are of no relevance to the facts of
the instant case. There follows subsection (5), which is of the greatest
importance here:

"(5) Nothing contained in or done under the authority of any law shall be
held to be inconsistent with or in contravention of this section to the extent
that the law in question makes provision which is reasonably required - (a) in
the interests of defence, public safety' public order, public morality or public
health; or (b) for the purpose of protecting the rights and freedoms of other
persons, including the right to observe and practise any religion without the
unsolicited intervention of members of any other religion; and except so far as
that provision or, as the case may be, the thing done under the authority
thereof is shown not to be reasonably justifiable in a democratic society."

The language of these provisions may sound a trifle involved but the meaning
and intent of them are clear. Subsections (1) and (2) - together with
subsections (3) and (4) - introduce the right to freedom of conscience, thought
and religion. That right is a fundamental one. But it is not absolute. It is
 267

subject to the provisos enacted by subsection (5). The effect of these provisos
is to allow restraints on freedom of conscience when these are imposed by a
law which satisfies certain requirements, and when the restraints themselves
are reasonably justifiable in a democratic society.

p162

[13] In determining, therefore, whether there has been any breach of the
applicant's rights to her freedom of conscience here, it is necessary to see first
whether in fact she has been, or is being, or is likely to be, hindered in the
enjoyment of her freedom of conscience or religious thought. It is to be noted
that the operative word is "hindered", not "prevented". Nor is there any
qualification of the word "hindered". Even a slight degree of hindrance,
therefore, will be relevant and may constitute a contravention of section 21.

The onus is clearly on the applicant to prove that she has been so hindered and
I have no hesitation in holding that she has successfully discharged this
burden.

The Attorney-General argued that there could be no hindrance here in that the
applicant was not and is not compelled to attend any Government school. She
elected to do so, or her father did on her behalf, and she was free to leave at
any time. Her election, of course, was not an election to join a school where
she knew she would be required to sing the national anthem and salute the
national flag. It was at best an election to remain in a school after this
requirement had been imposed.

[14] But in any case, in my view, the applicant was hindered in the enjoyment
of her freedom of conscience the moment she was put under coercion to sing
the national anthem against her religious beliefs. For at that moment she was
not free to give expression to her religious convictions, albeit passively, by
refraining from joining in what she considered to be a hymn of praise to other
than Jehovah God Himself. Furthermore, I think she is also both being
presently hindered and likely to be hindered in the future in as much as whilst
she is free to enjoy her freedom of conscience in most of Zambia she is not so
free on the premises of any Government or aided school to which she would
ordinarily be entitled to admission; and she may anticipate that if she secures
such admission she will be subject again to the same coercion which she has
already experienced to act against her religious beliefs.

All this, to my mind, clearly constitutes hindrance, and it follows that the
applicant is entitled to redress in respect thereof unless that hindrance and the
law which sanctions it come within the ambit of subsection (5) of section 21.

Mr Richmond Smith submitted that once the applicant had succeeded in

proving that she had been hindered in the enjoyment of her freedom of
 268

conscience, the onus of showing that the law which brought about that
situation fell within the ambit of subsection (5), rested on the State.

[15] [16] [17] There is, however, a presumption that the Legislature has acted
constitutionally and that the laws which it has passed are necessary and
reasonably justifiable (see Arzika v Gov. N Region [11] per Bate, J at 382);
and I think this presumption extends to rules made by a minister under
statutory powers conferred on him by the Legislature. It is part of the
applicant's case that regulation 26 is unconstitutional and invalid. The onus is
on her to prove it, and as part of that onus she has

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to show that regulation 25 is not saved by any of the provisions of section 21

(5) of the Constitution (see Cheranci v Cheranci [12] (commented on in 1963
J.A.L. at pages 159-160)). Similarly, if the issue arises, it will be for her to
show that "the thing done under the authority" of the regulations - that is to
say, the coercion exercised on her, her suspension and her continued exclusion
from school, or any one of them - is not reasonably justifiable in a democratic
society.

I have already quoted the provisions of section 21 (5) in detail. To prove that
subsection (5) does not save regulations 25 and 31 (1) (d) or, alternatively,
anything done under them, from amounting to a contravention of section 21,
the applicant has to establish one or other of a number of alternatives. I state
these in relation only to the facts of the instant case and as simply as possible.
The applicant must show, either -

(1) that regulation 25 or 31 (1) (d) goes beyond the extent of what is
reasonably required in the interests of defence, public safety or public order,
or for the purpose of protecting the rights and freedoms of others; or
(2) that regulation 25 or 31 (1) (d) goes further than is reasonably justifiable
in a democratic society; or
(3) that any one of the hindrances she has suffered to her enjoyment of
freedom of conscience - the coercion, the suspension and the exclusion - go
further than is reasonably justifiable in a democratic society.

If the applicant succeeds in establishing any one of these alternatives then she
succeeds in her case, for I have already held that she has been hindered in the
enjoyment of her freedom of conscience.

Mr Richmond Smith submitted that a law which compels little children to sing
the national anthem and salute the national flag in Government schools on
pain of suspension cannot be said to be reasonably required in the interests of
defence, public safety, public order or for the purposes of protecting the rights
and freedoms of others. The purely passive actions of these children, he
 269

contended, in not actually singing the national anthem or saluting, the national
flag, but in other respects behaving with perfect propriety in regard to these
national symbols cannot possibly imperil the State or the public or have any
effect on other persons rights and freedoms, as they simply do not touch them.
This is powerful argument and I have every sympathy with it.

[18] The Attorney-General's submission, in answer, was to say that regulation

25, and by implication regulation 31 (1) (d), is reasonably required both in the
interests of public safety and for the purposes of protecting the rights and
freedoms of others. He argued, further, that if regulation 25 is so reasonably
required here in Zambia then it must surely follow that it is also a reasonably
justifiable measure in a democratic society, because Zambia is a democratic
society.

p164

The Attorney-General put his argument this way: the applicant's undoubted
right to enjoy freedom of conscience, and all the other rights and freedoms
guaranteed by Chapter III of the Constitution, depend for their very existence
and implementation upon the continuance of the organised political society -
that is the ordered society - established by the Constitution. The continuance
of that society itself depends upon national security, for without security any
society is in danger of collapse or overthrow. National security is thus
paramount not only in the interests of the State but also in the interests of each
individual member of the State; and measures designed to achieve and
maintain that security must come first; and, subject to the provisions of the
Constitution, must over- ride, if need be, the interests of individuals and of
minorities with which they conflict.

I fully accept the principle of these arguments. Indeed, the way in which
section 21 (5) of the Constitution is framed is in accordance with it.
Subsection (5) indicates that in the interests of the security of the State or of
the general rights of the people, the individual's right to the unhindered
enjoyment of freedom of conscience can be curtailed.

The next and most important stage in the Attorney-General's argument was to
submit that to achieve and maintain national security it was essential to have
national unity. "National unity", said Frankfurther, J, in Gobitis, [1] "is the
basis of national security." I agree; and I would add this: if national unity is
essential in a mature and established nation, how much more necessary is it in
a newly emergent nation? I think this court can take judicial notice of the
disruptive consequences of disunity where this has manifested itself in other
newly emergent states on this continent. Zambia is a newly emergent state. I
accept the unchallenged evidence in the affidavit sworn to by Mr Valentine
Musakanya, the Secretary to the Cabinet, that there are some seventy-three
 270

tribes in Zambia. Further, that tribalism and sectionalism do constitute serious

dangers to the unity and thus to the security of Zambia.

I also accept that to counteract these dangers there must be instilled in the
nation a consciousness of national unity and national allegiance and that in
particular such a consciousness must be instilled in the minds of the young by
proper and appropriate instruction. Regulation 25 is expressed to be designed
to that end; the opening words are: "For the purpose of promoting national
unity . . ." Along with - so far as I know - every other civilised country in the
world, Zambia has adopted a national flag and a national anthem as symbols
of her nationhood. These symbols must be acknowledged as such and treated
with due respect; and it follows that in principle a law which makes proper
provision therefore is one which is reasonably required in national interests
and is reasonably justifiable in a democratic society.

I do not think that Jehovah's Witnesses are in disagreement with this principle.
Their quarrel is not with the principle but the manner of implementing it. They
say the law is unconstitutional: that it requires it.

p165

things to be done and imposes sanctions for not doing them, which are not
reasonably required and are not reasonably justifiable.

The court has to decide these matters. Ordinarily, where a court is called upon
to adjudicate on the effect of a legislative measure, it is concerned only with
the validity of the measure, its meaning and its application. It is not concerned
with its wisdom or even its reasonableness. These normally, are matters
purely for the Legislature. But here, by reason of the provisions of sections 28
and 25 of the Constitution, the court is charged with determining
reasonableness, and this task I must now fulfil in relation to regulations 25 and
31 (1) (d), and what has been done to the applicant under these regulations.

The first point I would make is the rather obvious one: that for a law to come
within the ambit of subsection (5) of section 21 of the Constitution that law
does not have to be necessarily required or even urgently required - it has only
to be reasonably required.

[19] The second point I would make is that in approaching its task the court
must give due weight to the opinion of the Legislature, as expressed in the
legislation.

The court's proper approach in matters of this nature has been considered in a
number of cases in other countries. The matter is well summarised in a
Nigerian case - D.P.P. V Obi [13] - where Brett, F.J., said, at page 197:
 271

"There is one fact to which our attention was not drawn by counsel but
which I do not feel able to ignore. The Constitution entrusts the courts with
the task of deciding conclusively whether or not any legislative measure
contravenes Chapter III of the Constitution, and I do not wish to say anything
which might suggest that the courts are evading their responsibilities.
Nevertheless, it is right that the courts should remember that their function is
to decide whether a restriction is reasonably justifiable in a democratic
society, not to impose their own views of what the law ought to be. In
considering the correct judicial approach, the Supreme Court of India said, in
Madras v Row (1952) SCR 597:

' In evaluating such elusive factors and forming their own

conception of what is reasonable in all the circumstances of a given case, it is
inevitable that the social philosophy and the scale of values of the judges
participating in the decision should play an important part, and the limit to
their interference with legislative judgment can only be dictated by their sense
of responsibility and self-restraint and the sobering reflection that the
Constitution is meant not only for people of their way of thinking but for all,
and that the majority of the elected representatives of the people have, in
authorising the imposition of the restrictions, considered then to be
reasonable'.

In similar vein, Holmes, J, delivering the judgment of the Supreme Court

of the limited States in Mo., Kan. and Texas R .R

p166

v May (1904) 194 U.S. 267, a case concerning the constitutional guarantee
of the equal protection of the laws said:

' It must be remembered that legislatures are ultimate guardians of the

liberties and welfare of the people in quite as great a degree as the Courts'."

Now, in the light of all the foregoing, I ask myself, is it reasonably required in
the interests of public safety, or for the purpose of protecting the rights and
freedoms of others that children in Government schools should be required to
sing the national anthem and salute the national flag? The criterion is
reasonableness, not essentiality. A requirement can be reasonable without
being essential.

The burden is on the applicant to show that the requirement is not reasonable,
and I do not think she has discharged it.

Bearing in mind the compelling consideration; particularly at the present time,

of national unity and national security, without which there can be no
certainty of public safety nor guarantee of individual rights and freedoms, I
 272

think it is a reasonable requirement that pupils in Government and aided

schools should sing the national anthem and salute the national flag. I
certainly cannot see that it is unreasonable - which is substantially what the
applicant has to prove; and if a thing is not unreasonable then surely it must be
reasonable. There is little, if any, room for anything in between.

I should add that the position might well be different if the requirement to sing
the national anthem and salute the national flag went outside Government and
aided schools. Then it might not be reasonable. But the true position here is
that the applicant is not compelled by the State to sing the national anthem or
salute the national flag. She is only required to do so as a condition - along
with other conditions - if she wishes to attend a Government or aided school,
that is to say, if she chooses to accept education provided or financed by the
Government. This seems to me to be reasonable. She is not compelled to
attend a Government school. Education is not compulsory in Zambia as it is in
some other countries. Nor is the State under any mandate to provide
education. It is true, as I understand it, that at present, she can look to no other
comparable source of education than Buyantanshi School because at present
no other is available. But she is not, as a result denied freedom of religion. She
isfree to practise her religion as she pleases. It is not really her freedom of
religion which is invaded; it is her freedom of education; but that is not a
freedom which is guaranteed by the Constitution.

Is regulation 31 (1) (d), by itself, reasonably required in the interests of public

safety or for the protection of the rights and freedoms of others? This poses
the question, is it reasonable to visit the sanction of suspension from school on
those who refuse to comply with regulation 25? Once it is accepted that
regulation 25 itself is reasonably required I can think of no more appropriate
way of ensuring compliance with it. If pupils are not prepared to obey
reasonable Government school rules then it must be a

p167

reasonable requirement that they should leave. Here again, it might be

otherwise if the sanction imposed were, say, corporal punishment. The idea of
chastising a child because it will not perform an act contrary to its religious
conscience strikes me not only as unreasonable but as barbaric. But a sanction
of suspension or evolution seems to me the logical answer to refusal to
comply with a reasonable school requirement.

[20] Are regulations 25 and 31 (1) (d) reasonably justifiable in a democratic

society? Subsection (5) specifies "a democratic society". It does not specify
Zambia. But it is accepted that Zambia is a democratic society. The criteria of
what is justifiable in a democratic society might vary according to whether
that society is long established or newly emergent. Zambia is newly emergent.
It would be unrealistic to apply the criteria of a long-established democratic
 273

society. We should look to the democratic society that exists in Zambia; and
having found that these regulations are reasonably required in Zambia I have
no hesitation in finding that they are reasonably justifiable in the democratic
society that exists here.

Finally, there is "the thing done under the authority" of these regulations. Here
the applicant was coerced to sing the national anthem and when she declined
to do so she was suspended from school and denied readmission. Were these
actions reasonably justifiable in a democratic society? But I have really
already answered this question when dealing with the reasonableness of the
regulations which authorise the taking of these actions. In my view they are
reasonably justifiable in the democratic society which exists here in Zambia.

To summarise any findings in relation to the relief claimed and the grounds
therefore submitted in the originating notice of motion, I find that:

(1) Regulations 25 and 31 (1) (d) of the Education (Primary and

Secondary Schools) Regulations, 1966, are valid and within the rule-making
flowers conferred by section 12 of the Education Act, 1966; further, that they
do not conflict with any other provision of the Education Act, 1966, nor are
they in conflict with section 21 of the Constitution.
(2) The applicant has suffered hindrance in the enjoyment of her freedom
of conscience in that she has been coerced to sing the national anthem at
Buyantanshi School contrary to her religious conscience; and that she has
belly suspended from school and denied readmission thereto in consequence
of her refusing to sing the national anthem or salute the national flag.
(3) Such hindrance, however, does not constitute a contravention of her
right to the enjoyment of freedom of conscience, secured to her by section 21
of the Constitution, inasmuch as that hindrance is reasonably justifiable in a
democratic society and was authorised by laws which were both reasonably
required in the interests of defence and for the purpose of protecting the rights
and freedoms of other persons, and themselves reasonably justifiable in a
democratic society.

p168

It follows that the applicant has not established that any of the provisions of
sections 13 to 26 (inclusive) of the Constitution have been, are being, or are
likely to be, contravened in relation to her, and that she is not entitled to any
redress under section 28 of the Constitution. There must be judgment for the
Attorney-General with costs.

Order accordingly
 274

HARRY MWAANGA NKUMBULA AND SIMON MWANSA KAPWEPWE

v UNITED NATIONAL INDEPENDENCE PARTY (1978) Z.R. 388 (H.C.)

HIGH COURT
SAKALA, J.
27TH OCTOBER, 1978
1978/HP/1142

Flynote

Civil procedure - Parties - Whether unincorporated political party could be

sued in its name.
Civil procedure - Parties - Representative capacity - Procedure to sue an
unincorporated body.

Headnote

The United National Independence Party, an unincorporated political party

(hereinafter referred to as UNIP), was named as the respondent in the
proceedings. The Attorney-General appearing on behalf of UNIP made a
preliminary objection on the ground that UNIP, an unincorporated body, was
not a legal entity and could not therefore be sued in its name. He equated it to
a members' club and adopting the definition of a "club" submitted that UNIP
is a society of persons associated together for the purpose of promotion of
politics and as such it has no legal existence apart from the members it is
composed of. Counsel for the applicants submitted that the law on the point
was unclear but that, under s. 36 of the Societies Act, UNIP could be named
as a party. In the alternative he submitted that the court had a discretion to
amend the proceedings and make the Attorney-General appear on behalf of
UNIP.

Held:

(i) An unincorporated body is not a legal entity and is therefore not

capable of suing or being sued in its name. It could only sue and be
sued in a representative capacity. Hence UNIP can only be sued in a
representative capacity.

(ii) The Attorney-General who is also Minister of Legal Affairs is a

member of UNIP and could be made respondent in a representative
capacity.

(iii) The preliminary objection would be upheld.

Cases cited:
 275

(1) Andrews v Salmon (1888) 4 T.L.R. 490.

(2) Nyasaland Trade Union Congress v Nkolokosa (1963) R.& N. 184.
(3) Campbell v Thompson and Another [1953] 1 Q.B. 445.
(4) Trewby v Customs and Excise Comrs [1976] 2 All E.R. 199.
(5) Parr v Lancashire and Cheshire Miners' Federation [1913] 1 Ch. 366.

Legislation referred to:

Societies Act, s. 36.
R.S.C. (England), 0.16, rr. 8 and 9.

For the applicants: A.P. Annfield, Annfield & Sikatana.

for the respondent: Hon F.M. Chomba, MP, Minister of Legal Affairs
and Attorney-General and A.M.
Kasonde, Senior State Advocate.
________________________________________
Judgment

SAKALA, J.: delivered the judgment of the court.

At this stage in the proceedings, another preliminary point of procedure has

again arisen. This time, it is taken by the respondents. From the force of the
arguments presented in support and in opposition, I do not doubt the merit in
the objection. But meaning no disrespect, I must observe that the notice now
being challenged was served on the 25th September, 1978. Several documents
were filed and served. On the 2nd October, 1978, which was the date of
hearing, the applicants raised a preliminary objection. It was argued and a
ruling delivered and dates for the hearing of the main cause set. Speaking for
myself, the objection raised by the respondents at this stage could have fairly
and properly been taken at a much earlier stage. I am not how ever prepared to
say there was a deliberate attempt to delay these proceedings. But I can
certainly say that these preliminary objections have caused some delay.

Turning to the objection now raised, the argument is that, the notice is
irregular and bad on the ground that the Originating Notice of Motion dated
25th September, 1978, beginning these proceedings contains a misdescription
of parties in that the United National Independence Party cited as respondent
is not a legal entity consequently the Originating Notice of Motion does not
indicate to a reasonable man which person is exactly referred to under that
description.

In support of the application is an affidavit sworn by the legal, counsel to the

United National Independence Party. Paragraphs (5), (6) (7) and (8) of the
said affidavit read as follows:

p390
 276

"5. That on the 25th September, 1978 the Originating Notice of Motion, a
copy of which is now produced and exhibited hereto marked 'AMM 1', was
issued at the Principal Registry, High Court, Lusaka;
6. That the Originating Notice of Motion aforesaid was subsequently
addressed and sent to the United National Independence Party, Freedom
House, Cairo Road, Lusaka;
7. That the said United National Independence Party is not incorporated and
there is no statute or rule of common law which confers legal personality
upon the said United National Independence Party or which permits the said
United National Independence Party to sue or be sued in its name;
8. That in consequence of the facts deposed to in paragraph 7 hereof, it is not
clear which legal entity is referred to in the description 'United National
Independence Party', which is capable in law of suing and being sued under
that name."

In his submission, the learned Attorney-General equated the United National

Independence Party with a members' club and adopted the definition of a club
as set out in para. 586 of Vol. 5 of the 3rd Ed. of Halsbury's Laws of England
which in part reads:

"A club may be defined as a society of persons associated together for

social intercourse, for the promotion of politics, sports, art, science or
literature, or for any purpose except the acquisition of gain.''

He submitted that the United National Independence Party is a society of

persons associated together for the purpose of promotion of politics in
Zambia. He submitted that as such club, it has no legal existence apart from
the members which it is composed of. The learned Attorney-General in
support of his submissions also made reference to p. 636, Vol. 2 of the White
Book, para. 2046 under the heading "Unincorporated Body." He submitted
citing the case of Bloom as quoted in that paragraph that the United National
Independence Party as an unincorporated body, cannot be sued in its name.
The learned Attorney-General also relied on this submission on para. 648 of
the same Halsbury's Laws of England which reads as follows:

"An unincorporated members' club, not being a partnership or legal entity,

cannot sue or be sued in the club name nor can the secretary or any other
officer of such a club sue or be sued on behalf of the club, even if the rules
purport to give him power to sue and provide for his being sued unless this is
permitted by statute."

In reply, Mr Annfield argued that the applicants are not suing the United
National Independence Party as such. It is only because the form in the
schedule used the word respondent. This being not a case for claim for
damages, the United National Independence Party as a registered
 277

p391

society, can be named in these proceedings. He submitted that in the light of

the fact that at this stage in the proceedings all the documents have been
received, filed and served on behalf of the United National Independence
Party, no prejudice shall be occasioned if the United National Independence
Party was named in these proceedings and by its remaining party. Mr
Annfield pointed out that our own law on the subject is unclear. But by
inference from the Societies Act, in particular, s. 36 regarding service of
summons, the United National Independence Party can be named as a party in
these proceedings. In the alternative, Mr. Annfield submitted that the court has
a discretion to amend the proceedings to make the Attorney-General appear
on behalf of the United National Independence Party excluding the
respondents.

In reply, the learned Attorney-General submitted that the issue is not one of
misnomer but of misdescription. In a case of misdescription, no party exists.
Hence an irregularity of such a nature cannot be cured by an amendment.

I have very carefully addressed my mind to the submissions by the learned

Attorney-General and Mr Annfield on this point. From my very brief research,
I find no direct reported authority on the point in Zambia. The issue as I see it
is whether the United National Independence Party can be sued in its own
name? The learned Attorney-General's argument is that, the United National
Independence Party is a members' club and as a society of persons for
promotion of politics has no legal entity of its own, hence, it cannot be sued.
He cited several authorities. Mr Annfield on behalf of the applicants conceded
that our law is not clear on the point. It is common knowledge that; the United
National Independence Party is a registered society. In my ruling, on another
point in the same proceedings, I said at p. 9.

"I think this court is entitled to take judicial notice that Zambia is a one
party State and that that Party is the United National Independence Party, the
Respondent in these proceedings. At the same time, while it is common
knowledge that the United National Independence Party forms the
Government of the Republic of Zambia, I cannot with greatest respect, say
that the United National Independence Party forms the State (the Sovereign
Republic of Zambia)."

Further, at p. 10 I said:
"The United National Independence Party in my humble opinion is above
a merely registered society."

With greatest respect therefore, it would appear to me that the United National
Independence Party cannot be strictly equated with a members' club granted
that it is not incorporated. Meaning no disrespect, I have not come across a
 278

members' club which forms a government of a sovereign republic. Be that as

it may, it would be observed that para. 648 of the 5th Vol. of the 3rd Ed. of
Halsbury's Laws of England which the learned

p392

Attorney-General cited in support of his submission goes further and says:

"Further, where there are numerous persons having the same interest in
one cause or matter, one or more of them may sue or be sued, or may be
authorised by the court to defend, on behalf, or for the benefit, of them all."

An old case of Andrews v Salmon (1) was a case brought by a member of the
club to restrain the club from expelling him. The club consisted of thirty
members of the committee. Mr Justice Kay ordered that the chairman of the
committee and the secretary who were made defendants should be authorised
to represent the committee and defend on behalf and for the benefit of them
all. The order was made despite the objection by the defendant.

It is settled principle of common law that an unincorporated body has no legal

entity capable of suing or being sued. It is equally a settled principle of law
that where numerous persons have the same common interest or defence in a
matter one or more may sue or be sued or the court may authorise one or more
to defend on behalf of or for the benefit of all. (See para. 648 of Vol. 5 of the
3rd Ed. of Halsbury's Laws of England . Also see O. 15, r. 12.) Coming nearer
home is the case of Nyasaland Trade Union Congress v Nkolokosa (2). In that
case, the writ both in title and endorsement was in the name of the "Nyasaland
Trade Union Congress". The relevant claim was a declaration that the
defendant was no longer the General Secretary of the Congress having refused
to accept his regular dismissal. The plaintiff also claimed for an injunction to
restrain the defendant from holding out as General Secretary. There was also a
claim for recovery of congress property held by the defendant. The defendant
inter alia moved the court for an order to strike out the plaintiff and dismissal
or that competent plaintiffs be added on the ground that the plaintiff was not a
trade union within the meaning of the Trade Union Ordinance and was at law
a non-existent body with powers to sue or to be sued. It was common cause in
that case that the plaintiff was not a trade union registered within the meaning
of the Ordinance. The court in that case had to consider submissions as
presented before me in the present case. There were various English decisions
cited and followed. The court among others held that an unregistered trade
union can have no more legal status than an unincorporated members' club
which cannot sue in its club name. The court further held that the proper
course where an unregistered trade union is sued or suing is by persons fairly
representative of the union. The court further pointed out that the question of
whether the parties are properly sued is not a mere technicality which could be
waived if the party so chose. In that case, although the court did consider its
 279

discretion to add the parties to the action found that on the facts presented, it
would not exercise its discretion, accordingly the plaintiffs were struck out. I
agree with the learned Attorney-General that a members' club cannot be sued
in its name. Hence, the United National Independence Party cannot be sued in
its name. But if the learned Attorney-General was suggesting that the

p393

United National Independence Party cannot sue or be sued in any other

capacity, I would then be in difficulty in accepting such a submission.

The principle representative actions has been applied to old as well as to new
cases. The facts of the case of Campbell v Thompson and Another (3), as
presented by the headnote appear very relevant to the issue now before this
court. The facts are that the plaintiff a former employee of an unincorporated
members' club, in an action for damages for personal injuries sustained in a
fall on the club premises sued two members of the club, the honorary assistant
secretary and the chairman of the house committee, "on their own behalf and
on behalf of all the other members of the club" for the alleged negligence and
breach of duty by the defendants as her employers and as occupiers of the
premises. On an application for a representation order under R. S.C. O. 16, r.
9 it was held - that as all the members of the club had, both as employers and
as technical occupiers of the club premises, the same common interest in
resisting the plaintiff's claim, and as the two defendants were persons who
could fairly be taken as representing the body of the club members, a
representation order might be made. It was observed that the only members,
however, who could properly be sued in the proceedings were those persons
who were members of the club at the time of the plaintiff's fall, and the order
to be made must, therefore be restrained to such persons.

This case was explained but not over-ruled in the case of Twerby v Customs
and Excise Comrs (4). According to the 1976 Edition of the White Book, O.
16, r. 9 is now O. 15, r. 12. The rule reads as follows:

"Where numerous persons have the same interest in any proceedings, not
being such proceedings as are mentioned in Rule 13, the proceedings may be
begun, and, unless the court otherwise orders, continued, by or against any
one or more of them as representing all or except one or more of them."

Part of the note on the rule on p. 203 reads as follows:

"The rule as to representative proceedings should be treated as being not a

rigid matter of principle but a flexible tool of convenience in the
administration of justice, and should be applied, not in any strict or rigorous
sense, but according to its wide and permissive scope (per Megarry J. in John
v Rees: Martin v Davis Rees v John [1969] 2 W.L.R. 1294)."
 280

Lastly on representative actions is the case of Parr v Lancashire and Cheshire

Miners' Federation (5), at p. 375, Neville, J, had this to say:

"Lastly, it is said that the Miners' Federation which is an unregistered

association and certainly one of a somewhat amorphous character, is not
properly sued and is not sufficiently represented here by the officials who
have been made defendants. I think the rule is well expressed by Lord
Macnaghten in the case of Taff Vale Ry. C. v Amalgamated Society of
Railway Servants

p394

(4), where he says that an unregistered trade union 'may be sued in a

representative action if the persons selected as defendants be persons who,
from their position, may be taken fairly to represent the body.' It appears to
me here that the chief officials of the Miners' Federation who have been made
defendants do fairly represent that body. I have not the least doubt from the
arguments that have been addressed to me that the defendants who have been
joined are acting on behalf of that association in the defences that they have
raised here. It is said that the executive committee and the trustees were the
proper defendants. What is wanted is a sufficient representation, and if the
executive committee or if the trustee had desired to be added as defendants to
this action, there is no question that upon the application they could have been
added as defendants, and that they were through their officers perfectly well
advised of the case and put in a position in which they might have made such
an application had they so wished, I feel no doubt whatever. I think therefore,
that objection also fails."

Speaking for myself, I accept this as sound law. Accordingly from the
authorities cited, I am satisfied that the United National Independence Party
can sue or be sued in a representative capacity but not in its own name. The
question therefore is as to who can sue or be sued on behalf of the United
National Independence Party in a representative capacity. In his submissions,
the learned Attorney-General did concede that the outcome of the main action
would effect the United National Independence Party if the applicants
succeeded. Mr. Annfield submitted that the Attorney-General having already
been made a party to these proceedings, the court of its own motion can
amend the proceedings so that the Attorney-General is also made to appear on
behalf of the United National Independence Party and all other members of
the United National Independence Party excluding the two applicants. I find it
unnecessary to go into details into the Constitution of the United National
Independence Party and the Republican Constitution. However, it is common
knowledge that the learned Attorney-General who is also Minister of Legal
Affairs is a member of the United National Independence Party since Zambia
is a One- Party State and that party which forms the Government is the United
 281

National Independence Party. Having very briefly perused the amended

Constitution of the United National Independence Party, it would appear for
practical purposes that the Secretary - General of the Party would be a proper
party to these proceedings since according to Art. 58 of the amended Party
Constitution he is the Chief Administrative Officer of the Party responsible
for the supervision of the day-to-day duties and functions of the Party. The
principles outlined in my ruling are that, one or more of numerous persons can
represent the others. I have also observed that the principles of representative
proceedings is not a rigid principle but a flexible tool of convenience in the
administration of justice. In the circumstances, applying the principles as set
out in my ruling, I order that the name of the United National Independence
Party appearing as respondent in these proceedings be struck out and in its
place, the Attorney-General who is already a party and who is a member of
the United National Independence Party with a common defence with all other
United National Independence Party members be made respondent in a
representative capacity on behalf of the United National Independence Party
and all its members. The costs will be in the cause.

Preliminary objection upheld

 282

SECRETARY-GENERAL OF THE UNITED NATIONAL

INDEPENDENCE PARTY v ELIAS MARKO CHISHA CHIPIMO
(1983) Z.R. 125 (S.C.)

SUPREME COURT
SILUNGWE, C.J., NGULUBE, D.C.J. AND GARDNER, J.S.
31ST AUGUST,1983
(S.C.Z. JUDGMENT NO.24 OF 1983)
APPEAL NO.15 OF 1983

Flynote

Civil Procedure - Parties - Secretary - General of UNIP - Official capacity -

Appearance as such.
Civil Procedure - Parties - Secretary - General of UNIP - Representative
capacity Appearance as such.

Headnote

The Secretary - General of UNIP appealed against a High Court judgment

holding that it was proper to sue him his official capacity, on behalf of the
Party.

Held:

(i) The Secretary - General of UNIP is not a corporation sole nor a

legal entity, hence cannot sue or be sued by virtue of his office.

(ii) He can only be sued a representative capacity by name, in

which case, in compliance with O.XIV (High Court Rules, Cap. 50)
he may be sued on his own behalf and on behalf of all the other
members of UNIP who were members at the time of the defamation;
providing it is shown that there was a community of interest between
himself and the other members.

Cases cited:
(1) Nkumbula and Kapwepwe v UNIP (1978) Z.R. 388.
(2) London Association for Protection of Trade and Anor v Greenlands
Limited, 1(1916) 2 A.C. 15.
(3) Mercantile Marine Service Association Toms anal Ors. (1916) 2 K.B. 243

Legislation referred to:

High Court Rules, Cap. 50, O. XIV rr. 1, 3.

For the appellant: A M Mtopa, Party Legal Counsel.

For the respondent: Dr R Mushota Lusaka Partners.
 283

____________________________________
Judgment

SILUNGWE, C.J.: delivered the judgment of the Court.

This is an appeal from a judgment of the High Court in which it was held that
it was proper to sue the Secretary - General of the United National
Independence Party (hereinafter referred to as UNIP) in his official capacity,
on behalf of the Party. The appeal arises out of an action for defamation
brought by the respondent against Mr Mainza Chona, the first defendant (and
the immediate past Secretary - General of UNIP), the Secretary - General of
UNIP, the second defendant, and the Attorney-General for Zambia, the third
defendant.

The main argument presented by Mr Mtopa, learned counsel for the second
defendant, is that the writ of summons contains misdescription of the
appellant, in that the Secretary - General of UNIP, not being a corporation
sole, or a legal entity, cannot sue or be sued. He contends that, in an action
against an unincorporated body, a representative thereof should be named and
the writ of summons endorsed to the effect that he is being sued in a
representative capacity.

The position taken by Dr Mushota, on behalf of the respondent, is that there is

no misdescription of the second defendant. In saying so, he

p127

relies on the following obiter dictum of Sakala J. in Harry Mwaanga

Nkumbula and Simon Mwansa Kapwepwe v United National Independence
Party, (1), at page 394, lines 38 to 40:

". . . it would appear for practical purposes that the Secretary- General of
the party would be a proper Party to these proceedings. . ."

There is no dispute that UNIP is an unincorporated body. It is trite law that an

unincorporated body cannot sue or be sued in its own name. Order XIV, rule
1, of the High Court Rules (made under the High Court Act, Cap. 50) provides
(citing only the relevant part thereof):

"Order XIV 1. If any plaintiff sues, or any defendant is sued, in any

representative capacity, it shall be expressed on the writ. . ."

It is clear to us that nowhere in the writ is it shown that the appellant in this
case is being sued in a representative capacity. We are thus satisfied that the
provisions of Order XIV, rule 1, of the High Court Rules have not been
complied with by the respondent.
 284

The Secretary - General of UNIP is not a corporation sole and so he cannot

sue or be sued as such. He can, however, be sued in a representative capacity
by name, not by the title of the office he holds, in which case he may be sued
on his own behalf and on behalf of all the other members of UNIP who were
members of the Party at the time the alleged defamation took place. In those
circumstances, the representative action can only succeed if it is shown that
there was a community of interest between the representative and other
members of their unincorporated body. This is in conformity with rule 3 of
Order XIV, aforesaid, which provides that:

"Order XIV
3. Where more persons than ones have the same interest in one suit, one or
more of such persons may be authorised to sue or to defend in such suit for the
benefit of or on behalf of all parties so interested."

There are two important English cases in point, the first one being London
Association for Protection of Trade and Another v Greenlands Ltd (2), where
a libellous report had, on request, been received by the Secretary of an
association which was not a corporate body, a partnership or a creature of a
statute. As the report was for the benefit of member of the association, the
Secretary transmitted the substance of it to him. In an action for libel, the
Secretary and the association were among those sued. An important issue was
whether the members of the association had a common interest within Order
XVI, r. 9 of the Rules of the Supreme Court (which is similar to our own
Order XIV, r. 3 of the High

p128

Court Rules), or in any way liable for the tort of the Secretary. In his
judgment, Lord Parker said, at page 39:

"To use the words of the 8th edition of Lindley on Partnership, p. 14, 'If
liabilities are to be fastened on' any member of such an association 'it must be
by reason of the acts of those members themselves, or by reason of the acts of
their agents; and the agency must be made out by the person who relies on it,
for none implied by the mere fact of association.' In view of such cases (i.e.
club cases) it would be going very far to hold that every member was liable
for the tort of the secretary, even though such tort were committed in the
course of carrying out the duties assigned to him under the contract between
him and the persons who engaged him. In other words, there might be
separate defences open to some members of the association and not to others,
and if this were so there would be no common interest within the rule."

Apart from the finding that the publication had been made on a privileged
occasion, it was held that the Secretary acted not as the agent of the
 285

association as a whole, but as the confidential agent of a particular member.

As there was no common interest amongst the members it was not competent
to sue the association nor could the Secretary represent all its members.

In the second case - Mercantile Marine Service Association v Toas and Others
(3) - an action was brought for an alleged libel published in journal owned and
managed by the Imperial Merchant Service Guild, an unincorporated body. In
the action, the plaintiffs sued the chairman, the vice-chairman, and the
secretary of the guild, "on their own behalf and on behalf of all other members
of the guild, and applied for an order under Order XVI, r. 9, that the
defendants should be appointed to represent all the other members of the
guild. Swinfen Eady LJ, made the following observations, at pages 216-217:

"I have great difficulty in seeing that in this case there are, numerous
persons having the same interest in this cause or matter within the meaning of
the rule. The action is for libel, and the plaintiffs must prove who published
the libel, and prima facie only those who have published it either by
themselves or by their servants or agents or have authorised its publication are
liable.
The various members of this association may be in a wholly different
position. If the members of the management committee were sued, and if in
fact they had authorised the publication of the libel they could raise such
defences as might be open to them. It might be that their defence would be
that the words complained of were not capable of the meaning alleged or of
any defamatory meaning, or that the words did not refer to the plaintiff. The
other member of the association, if sued, might say that, however defamatory
the words complained at might be, they did not authorise their publication:
that they were on the high seas and knew nothing about the matter. In my
opinion this rule is not intended to apply to such a case as this."

p129

Not only do we find the observations referred to in the foregoing English

cases persuasive, but we also agree with them.

In the instant case, it is common ground that UNIP is an unicorporated body.

We are satisfied that, as the Secretary - General of UNIP is neither a
corporation sole nor a legal entity, he cannot sue or be sued, merely by virtue
of his office. We are further satisfied that the provisions of Order XIV, rule 1,
of the High Court Rules, have not been complied with by the respondent.

For the reasons given, the appeal is allowed and the second defendant is struck
out of the action.

Costs will follow the event.

Appeal allowed
 286

NATIONAL MILLING COMPANY LIMITED v A. VASHEE (Suing as

Chairman of Zambia National Farmers Union)

Supreme Court
Ngulube, CJ, Lewanika and Chibesakunda, JJS
10th February, 2000 and 18th February, 2000, and 1st June, 2000
(SCZ Judgment No. 23 of 2000)

Flynote

Civil Procedure – Unincorporated Association – Whether can sue or be sued.

Civil procedure – Mis-joinder or non-joinder – Effect.

Headnote

The facts of this case were common cause. As was the practice and custom
representatives of the Zambia National Farmers Union would meet the top
officials of the appellant to negotiate and to agree on a basic price for wheat
to be grown and sold in an ensuing marketing season.

At a meeting held on 15th April 1993, an agreement was concluded and

signed between the Union and the company fixing the 1993 season factory
delivered price of wheat per metric tonne at US$302.00. In the meantime,
government adopted a liberalized marketing policy in consequence of which
the doors were flung wide open for importation of cheap wheat. The
appellant company resorted to offering to buy wheat from the farmers at
much reduced prices, ranging from K140,000 to K232,000 per tonne.
Aggrieved by this turn of events the farmers sued.

The appellant pleaded that the agreement had become impossible of

performance; that the agreement was a memorandum of understanding only;
that there was variation of the agreement and that the Union lacked the
necessary legal capacity to contract and to sue or to be sued. The learned
trial judge rejected these contentions. The appellant appealed.

Held:

(i) An unincorporated association is not a legal person and

therefore cannot sue or be sued. However, a contract purportedly
made by or with an incorporated association is not necessarily a
nullity.

(ii) Where there are numerous persons having the same interest in
any
 287

proceedings, the proceedings may begin and unless the court

otherwise orders, continued by or against any one or more of them
as representing all or as representing all except one or more of them.

(iii) Rule 5(3) of the High Court Act specifically prohibits the
defeasance of suits for misjoinder or non-joinder.

Legislation referred to:

High Court Act Cap 27 Order 14 rule 5(3).

Case referred to:

1. Mugala and Another v The Attorney-General (1988-1989) Z.R 171.

P. Matibini and M. Nchito, of MNB Legal Practitioners for the appellant.

C. Chonta, of Ellis and Company for the respondents.

Judgment

NGULUBE CJ, delivered the Judgment of the Court.

The basic facts of this case were fairly common cause. As was the practice
and custom which had evolved over the years in those days, representatives of
the Zambia National Farmers Union would meet the top officials of the
appellant company to negotiate and to agree on a basic price for wheat to be
grown and sold in an ensuing marketing season. The appellants were then the
only buyers for the crop worth talking about. And so it was that at a meeting
held on 15th April 1993, an agreement was concluded and signed between the
union and the company fixing the 1993 season factory delivered price of
wheat per metric tonne at USD302.00. The union was represented by Mr
Hudson, its Chairman at the time and another member while the company was
represented by the General Manager and two other top officials. The
agreement clearly showed that it was to benefit the wheat-growing farmers.
Forty-two such farmers grew wheat, obviously acting upon the agreement and
the knowledge that there was an assured basic price. In the meantime,
government adopted a liberalized market policy in consequence of which the
doors were flung wide open for the importation by whosoever of very cheap
sometimes duty-free wheat flour from South Africa and elsewhere. The
appellant company found that it would not have a market for its own wheat
flour if it stuck to the previously agreed price with the farmers. Efforts were
made jointly by the parties to persuade the government to ban the importation
of wheat-flour and otherwise to protect the local wheat farming, all without
success. The company resorted to offering to buy wheat from the farmers at
much reduced prices ranging from K140,000 to K232,000 per tonne which the
farmers felt constrained to accept, at considerable loss to themselves.
 288

Aggrieved by this turn of events, the farmers sued. At first, their union was
named as plaintiff. Objection was raised. It was conceded that as an
unincorporated association, it lacked legal capacity to sue or to be sued. The
incumbent Chairman, Mr Ben Kapita who had since succeeded Mr Hudson,
was then named as plaintiff in his capacity as Chairman and to represent
originally forty-one farmers which number was later amended to forty-two
affected farmers details of whom are on the record. When Mr Vashee became
Chairman, the action was once again amended to name him as the
representative plaintiff. The defence denied that there was any agreement
with the plaintiff, averring that the company had entered into separate
agreements with each farmer and that if there had been a collective agreement,
the same had been varied with new conditions negotiated with the farmers.
The company also pleaded that in the absence of government funding, the
agreement with the union had become impossible of performance. The
learned trial judge rejected an argument that the agreement was some kind of
memorandum of understanding only, holding that there was a clear and
binding agreement intended to create legal relations. The judge also rejected
the contention that there was variation of the agreement or that there was
frustration because the government did not fund the purchases. The learned
trial judge was satisfied that the company was fully aware that the action had
been brought in a representative capacity on behalf of named and identified
farmers who would receive damages to be assessed by the Deputy Registrar.

We heard a number of arguments and submissions based on a variety of

grounds of appeal. There was a ground and related submissions that the
union, as an unincorporated society lacked the necessary legal capacity to
contract and could therefore not sue or be sued. That being the case, it was
submitted that the contract could simply not be entered into and there was thus
no valid contract between the parties; only an agreement binding in honour.
With regard to the naming of successive chairmen of the union as the plaintiff
representing the farmers, it was argued that these were strangers to the
agreement so that only the original signatories could sue. It was further
submitted that as the office bearers lacked perpetual succession, they could
not enter into a contract to benefit the members from time to time nor could
they pass on the benefits. It was said that Mr Vashee was not an eligible
plaintiff himself so as to be able to bring himself within the provisions of
Order 14 of the High Court Rules regarding representative actions. In
response to the grounds concerning the capacity of the union to enter into a
contract, Mr. Chonta while conceding to the basic proposition contended that
the individuals representing the union had capacity as such individuals to
contract as agents for the other farmers. He submitted that the action ought
not to be declared a nullity merely for misjoinder or non-joinder especially
that contracts entered into with an unincorporated association are not nullities.
We were referred to the learned authors of Chitty On Contracts in the
passages (at paragraphs 675 and 676 of the 26th edition) under the subheading
“Liability of unincorporated associations” and “Representative action” which
 289

read –675 liability of unincorporated associations. An unincorporated

association is not a legal person and therefore cannot sue or be sued unless
such a course is authorized by express or implied statutory provisions as in the
case of a trade union and a trustee savings bank. Nor can a contract be made
so as to bind all persons who from time to time become members of such an
association. But a contract purportedly made by or with an incorporated
association is not necessarily a nullity. If the person or persons who actually
made the contract had no authority to contract on behalf of the members they
may be held to have contracted personally. On the other hand, if they had the
authority, express or implied, of all or some of the members of the association
to contract on their behalf, the contract can be enforced by or against those
members as co-principals to the contract by the ordinary rules of agency 676
epresentative action. By the rules of agency, therefore, a large number of
members of an association may find themselves parties to a contract. In
practice it would be impossible in such a case to join all the members as
plaintiffs or defendants, and therefore recourse must be had to the device of a
representative action. Order 15, r. 12, of the Rules of the Supreme Court
provides that where there are numerous persons having the same interest in
any proceedings, the proceedings may be begun and, unless the court
otherwise orders, continued by or against any one or more of them as
representing all or as representing all except one or more of them. The
attitude of the courts is to interpret the open textured language of Order 15, r.
12, in a liberal manner. Its language, according to Megarry V.-C., is wide and
permissive and the rule should be used as “a flexible tool of convenience in
the administration of justice.”

We respectfully agree with the observations by the learned authors both as to

the question of capacity or lack thereof of the association and on the issue of a
representative action. The agreement in the instant case was not a nullity and
the persons who represented the union could properly be regarded as
representing themselves and the other wheat-growing members. The
propositions founded in the Rules of the Supreme Court, Order 15, coincide
with the principles in our own High Court Rules, Order 14. It follows that the
criticism that the Chairmen were not qualified and competent representative
plaintiffs was a valid one since they were not themselves eligible plaintiffs
personally having any community of interest in the outcome. The question
arose what should be the result of this. Counsel for the company submitted
that the whole of the action be dismissed so that any competent plaintiffs
should start a fresh action while Counsel for the farmers argued that a retrial
could be ordered in these same proceedings. As we see it, a fresh trial would
appear to be justified by the line of defence adopted the thrust of which was to
deny the competence of the union and of the Chairmen and to argue that there
had been variation and separate contracts with the farmers. Indeed, the whole
of the appeal has been argued along those same lines, including the argument
that there was no intention to create legal relations when clearly the
representation comprised in the agreement was intended to be published and
 290

to be acted upon by the wheat-growing farmers, as they in fact did. The

question of misjoinder and or non-joinder of the correct parties has
predominated and it has relegated the issues on the merits to the background.
Yet, our Order 14 of the High Court Rules provides the necessary answers.
For instance, Rule 5(3) specifically prohibits the defeasance of suits for
misjoinder or non-joinder which would be the effect of acceding to the
arguments by Mr Matibini and Mr Nchito. A perusal through the reported
cases shows that the courts have consistently upheld the principle underlying
Order 14 Rule 5(3). Even in this case, the learned trial judge would have been
perfectly entitled to have exercised her powers to allow substitution of correct
parties: For an example of a case dealing with misjoinder or non-joinder we
need cite only the case of Mugala And Another v The Attorney-General (1).
We accept that, arising from any substitution of plaintiffs, both sides may
wish to reformulate their respective cases; certainly, we can imagine the
defendants wishing to put forward against each represented plaintiff the
subsequent bargain under which wheat was purchased at reduced prices.

It follows from what we have been saying that the appeal is allowed to the
extent that the judgment below is set aside and a retrial ordered before another
judge of the High Court. We direct that the Court below should allow
amendments by way of substitution of plaintiffs and any consequential
amendments to the pleadings on either side as may seem fit. The costs hereof
will abide the outcome of the retrial.

Appeal allowed
 291

JOHN MUGALA AND KENNETH KABENGA v THE ATTORNEY-

GENERAL (1988 - 1989) Z.R. 171 (S.C.)

SUPREME COURT
NGULUBE, D.C.J., GARDNER AND CHIRWA, J.J.S.
13TH SEPTEMBER AND 10TH NOVEMBER ,1989
(S.C.Z. JUDGMENT NO. 9 OF 1989)

Flynote

Civil procedure - Prima facie case - Right of Judge to rule on own motion.

Headnote

The plaintiff's truck broke down in the vicinity of a bridge that was being
guarded by armed police officers in uniform. The plaintiffs went with some of
the officers to a nearby village to drink beer. Later another armed police
officer joined the party and engaged in drinking beer. Some time later the
plaintiffs left the group and the officer who had joined the group later
followed them. For no apparent reason the officer shot the plaintiffs, injuring
them, and then shot himself dead.

The plaintiffs took out a writ alleging assault and battery or negligence by the
State. At the end of the plaintiffs case the judge invited submissions from both
parties. Counsel indicated that at that stage they would make no submissions.
The judge then made a ruling whereby he found that the plaintiffs had failed
to establish a prima facie case against the state. The plaintiff appealed.

Held:

It is most undesirable for a trial judge to volunteer a ruling especially

without affording the parties advance notice of what the judge has in mind
and giving them the opportunity to address him. The better practice is to
make a ruling only when the defence make a submission and even then the
judge should be slow to take a decision on the evidence before he has heard
it all.

Cases referred to:

(1) Young v Rank and others [1950] 2 K.B. 510
(2) Laurie v Raglan Building Company [1942] 1 K.B. 152
(3) Acropolis Bakery v ZCCM Ltd (1985) Z.R. 232
(4) Attorney-General v Landless (1970) Z.R. 1
 292

Legislation referred to:

1. High Court Rules, Cap. 50
2. Supreme Court Practice of England (White Book)

For the appellants:I.C.T. Chali, of Mwanawasa and Co

For the respondent: R. Okafor, Senior State Advocate.
_________________________________________
Judgment

NGULUBE, D.C.J.: delivered the judgment of the court.

The problem posed by this appeal is whether or not the learned trial judge was
right, of his own motion, to stop the case and to rule that the plaintiffs had not
made out their case so as to require the defendant to enter upon his defence.
We have been asked to find that the learned trial judge made a mistake and
that we should order the trial to proceed, or a new trial.

The plaintiffs took out a writ claiming damages for assault and battery,

p172

alternatively, for negligence. They had come across a party of armed police
officers in uniform guarding a bridge. The plaintiffs' truck broke down and in
the course of the events they went with some of the police officers to some
village in the neighbourhood for beer drinking. The offender joined them later
and they all drank the beer which the plaintiffs were buying. The offender was
also armed and in uniform. After a while the plaintiffs left and sat somewhere
to contemplate what they would do next. Out of the blue, the officer who
joined in the beer drinking later, followed the plaintiffs and for no apparent
reason shot at them injuring them and then shot himself dead. The State was
sued on the basis of vicarious liability and the defence was that the officer was
then on a frolic of his own. After the plaintiffs had given their evidence and
closed their case, the learned trial judge invited submissions but both counsel,
including the defendant's advocate, indicated they would not make any at that
stage. The learned trial judge nevertheless proceeded to make a ruling in
which he found that the plaintiffs had failed to establish a prima facie case;
that the offender was on a drinking spree with the plaintiffs and not on duty;
that he acted outside the scope of his duties and the defendant could not be
vicariously liable; and that the plaintiffs could only maintain an action against
the estate of the offender.

With regard to the no case ruling, we respectfully concur with the observation
in order 35/7/2 R.S.C. (1988 White Book) that, in a case such as this, it is
generally highly inconvenient to the trial judge for defending counsel to make
a submission of no case to answer and the judge should generally refuse to
rule on such a submission unless the defendant had made it clear that he needs
 293

to call no evidence or is put to his election. Although it is inconvenient, it is

obviously competent for a trial judge to make such a ruling and the matter is
solely within his judicial discretion: see Young v Rank and Others (1). One
consideration which a trial judge could have in mind would be the expense
and inconvenience to the parties should his ruling be found to have been
wrong on an appeal. We agree with Devlin J, when he made an observation to
this effect in the Young case, and it goes without saying also that the appellate
court is free to examine whether there was in truth no prima facie case and to
come to a different conclusion: see Laurie v Raglan Building Company (2).
We have not, of course, lost sight of the fact that the ruling here was
volunteered by the court and did not follow upon any submission by the
defence; but the point is whether it was competent for the learned trial judge,
even of his own motion, to make such a ruling. We do not doubt that it was
competent but hasten to point out that it is most undesirable for a trial judge to
volunteer such a ruling, especially without even affording the parties advance
notice of what the judge has in mind and giving them the opportunity to
address him. We suggest that it is better to adhere to the practice of making a
ruling only when the defence makes a submission and even then the judge
should be slow to make a decision on the evidence before he has heard it all.
There may, of course, be cases where it is very clear from any point of view
that the plaintiff's case must fail of its own inanition, as for example, in
defamation cases failure to prove express malice or special damage when the
defamation is actionable only on such proof.

p173

The plaintiffs in this case were non-suited by the finding of the learned trial
judge. We use the word ''non-suit'' not in its correct old sense now replaced by
the procedure of discontinuance but in its loose sense to denote the act of the
learned trial judge in stopping the case and entering judgment for the
defendant without calling upon him to prove his defence. One aspect which
was apparently not taken into consideration is that the judge at the trial has
full power to allow the plaintiff to alter or amend his writ or any party to
amend his pleading on such terms as may be just; and to add, or strike out, or
substitute a party under Order 14 of our High Court Rules. Even assuming,
therefore, that the learned trial judge was correct to rule that the wrong party
had been made the defendant, Order 14, especially at Rule 5(3), did not permit
that the action should be summarily defeated by reason of non-joinder or
misjoinder of parties. To sum up under the first question raised; although it is
competent for a judge to rule that there is no case to answer, it is undesirable
to volunteer the ruling and in any case, the High Court Rules do not permit
that the whole of the action should be defeated on account of non-joinder or
misjoinder. We consider that this last factor alone would entitle the plaintiffs
to succeed in this appeal.
 294

The second question concerned the finding that no prima facie case was made
out, presumably thereby saying 'against the defendant now sued'. There are
countless authorities on vicarious liability, especially where an employer
seeks to avoid his own liability on the basis that the employee was then on a
frolic of his own: for example, we cite only Acropolis Bakery v ZCCM (3)
where the employer was held not liable, contrasting this with Attorney-
General v Landless (4) where the employer was held to be liable. It all
depends on the facts and circumstances of each case and the time to make that
decision is after all the evidence has been heard. There was no indication from
the defence that they would not be calling any evidence and we do not know if
after the drinking spree the offending officer had resumed the course of
employment or not. In view of the fact that the appeal is liable to succeed on
the point concerning the erroneous ruling of non-joinder or misjoinder we do
not wish to prejudice the course of the new hearing, which we propose to
order before another judge of the High Court, by commenting any further on
the ground relating to a prima facie case.

In sum, the appeal is allowed and the ruling below reversed. In all fairness,
there should be a rehearing before another judge. Since the appeal stemmed
out of a ruling volunteered by the court, and in all the circumstances, the costs
of this appeal will abide the outcome of the retrial.

Appeal allowed.
 295

DR. LUDWIG SONDASHI v BRIGADIER GENERAL GODFREY

MIYANDA, MP (Sued as National Secretary of the Movement for Multi-
Party Democracy) (1995) S.J. 1 (S.C.)

SUPREME COURT
NGULUBE C.J., BWEUPE, D.C.J., AND GARDNER, J.S.
3RD FEBRUARY, 1995.
(S.C.Z. JUDGMENT NO. 1 OF 1995)

Flynote

Civil procedure - Decisions of domestic tribunals - Judicial review

commenced by writ - Judicial review - Appropriate matters for - Voluntary
association - Declaration of rights - To be instituted by writ not application.

Headnote

The appellant had been expelled from the respondent political party and he
sought a judicial review and a declaration that he had been wrongly expelled.
Trial Court found that the wrong procedure had been adopted as respondent
was a society dealing with private matters. The application was dismissed. On
appeal to the Supreme Court, question to be considered was whether the
tribunal against which the order was sought is one dealing with public law.
Respondent, a political party and in its domestic concerns a private
association, its tribunals dealing with private, not public, law. Appellant was
entitled to come to court but had adopted the wrong procedure.

Held:

(i) The proper course would have been to have issued a writ
claiming a declaration and injunction, not by way of application for
review.

The matter is one in which proceedings, instead of being refused, should

continue as if they had begun by writ, for which purpose matter sent back to
the High Court.

Cases referred to:

(1) John v Rees & Ors (1969) 2 ALL E.R. 274
(2) Lewis v Heffer & Ors (1978) 3 ALL E.R. 354.

For the Appellant: In Person

 296

For the Respondent: E. Silwamba and M. S. Malambo of Malambo &

Silwamba and Co.
_______________________________________________
Judgment

GARDNER, J.S.: delivered the judgment of the court.

This is an appeal against an order of the High Court dismissing an application

by way of judicial review for a declaration that the appellant had been
wrongly expelled from the respondent political party. A preliminary objection
was taken at the hearing before the lower court by the respondent on the
grounds that it was an inappropriate case for judicial review. The learned trial
judge found that, the respondent being a society dealing with private matters,
this was not an appropriate case for judicial review and the application was
dismissed. The appellant appeals against that ruling.

1995 ZR p2
GARDNER, JS

In the course of his appeal the appellant indicated that if the court were to
order that the matter be sent back to the High Court and tried as if the matter
had originally arisen by the issue of a writ he would withdraw his appeal in
respect of the judicial review and accept such an order.

Mr Malambo on behalf of the respondent at first argued that this was not
suitable case for hearing as it it had been commenced by issue of a writ, but,
after comments by the court, he conceded that an order for trial on that basis
would be appropriate provided clients were awarded the costs. Although this
matter will be decided as a result of concessions on the part of both parties, it
is necessary for this court to indicate its findings in respect of the question of
which cases should come by way of judicial review. Judicial review has taken
the place of the old prerogative writs of mandamus, certiorari and prohibition
and those writs were issued because of the supervisory position of the High
Court over inferior courts and over tribunals dealing with matters of public
law. the question to be considered therefore, is always whether the tribunal
against which an order is sought is a tribunal dealing with public law. In this
case we have no hesitation in agreeing with the learned trial judge that a
political party so far as its domestic concerns are concerned is a private
association and its tribunals deal with private law not public law. We say this
despite the fact that the result in this case would be that the appellant would
lose his seat in Parliament, which of course is a public matter, but that fact in
itself does not affect the functional status of the tribunal about which the court
is being asked to concern itself, that is, as a private tribunal. In this
connection, it is of interest to note that in the United Kingdom the cases of
John v Rees and Ors (1) and Lewis v Heffer & Ors (2) which were cases
 297

relating to the Labour Party, a political party in the United Kingdom, in

which it was argued that decisions had been improperly arrived at according
to the rules of the organisation, were both commenced by writ, and similarly,
in this country, cases relating to domestic tribunals such those of political
parties should be commenced by writ.

Dr Sondashi did indicate that he was concerned that the conduct of the
tribunal in the Movement for Multi-Party Democracy should be the subject of
scrutiny by the courts and we assure him that the courts have power to
investigate private tribunals and institutions which have made orders, such as
expulsion orders, to ascertain whether they had the power to make the orders,
whether they did so in accordance with such power and whether they
followed the rules of natural justice. there is no doubt, therefore, that the
appellant is entitled to come before the courtes; the only question is what
manner of instituting proceedings should he adopt. the proper course, as we
have indicated would have been to issue a writ claiming a declaration and an
injunction if appropriate. We are quite satisfied that this case comes within
the terms of the editorial note in the White Book 1993 Edition 53/1-14/49
which reads:

"Where the application for judicial review seeks relief in the form of
declaration, an injunction or damages, the court has power, if it considers that
such relief should not be granted in an application for judicial review, but
might have been granted it is had been sought in an action begun by writ, to
order that the proceedings, instead of being refused, should continue if they
had been begun by writ."

In this case obviously it would have been better had the attention of the
learned trial judge been drawn to that power, but as it was not, it will have to
be put right on this appeal.

For the reasons which we have given the appeal as to the application for
judicial review is dismissed. the appeal as to the amendment of the
proceedings is allowed. the case is sent back to the High Court to deal with
the action as it it had been commenced by writ. Costs of this appeal to the
respondent.

Appeal partly allowed and partly dismissed

 298

LONDON NGOMA, JOSEPH BIYELA, RICHARD NG’OMBE,

FRIDAY SIMWANZA AND LCM COMPANY LIMITED AND
UNITED BUS COMPANY OF ZAMBIA LTD (LIQUIDATOR)

SUPREME COURT
BWEUPE, D.C.J., CHAILA, CHIRWA, JJ.S.
22ND APRIL, 1998 AND 11TH MAY, 1999 .
(S.C.Z JUDGMENT NO. 22 OF 1999)
S.C.Z. APPEAL NO. 91 OF 1997

Flynote

Civil Procedure – Joinder of Parties – Interested Parties – Rule 67 of

Supreme Court Rules –

Headnote

The appellants were sitting tenants of the premises, the subject of litigation.
The tenants were offered the properties to buy by the 2nd respondent. The
appellants accepted the offers and paid deposits. Later the 2nd respondent
entered into an agreement with the 1st respondent and offered the properties
for sale to the 1st respondent. The 2nd was taken to court by the 1st
respondent. The appellants were not made parties to the action. They were
further not given notice about the action. During the proceedings for specific
performance, the parties obtained consent judgment. The appellants then
applied to be joined to the action but the court dismissed their application on
the ground that they could not be joined after consent judgment had been
obtained.

Held:

(i) That the appellants had interest in the matter and they should
therefore have been notified of any action taking place concerning
the properties on which they had paid deposits and which were
subject of the contract.

(ii) That the lower court erred in holding that the appellants could
not be joined to the action after consent judgment had been granted;
the consent judgment was one of which the appellants were not
parties and were not aware of a hearing.
 299

Case referred to:

1. The Attorney General v Aboubacar Tall and Zambia Airways Corporation
Limited, (S.C.Z. Judgment No. 5 of 1995).

For the Appellants: Mr. L.P. Mwanawasa, SC.

For the Respondents: Mr. D. Bukali, Musonda & Company.
________________________________________
Judgment

CHAILA, J.S.: delivered the judgment of the court.

This is an appeal by the appellants against the decision of the High Court
exercising its appellate jurisdiction. The matter came before the District
Registrar on appeal to the High Court. When the matter came before us at
Kabwe, nobody appeared on behalf of the respondents. We were told that the
respondents had been served with the notices of hearing. The court decided to
proceed with the hearing of the appeal. We would like further to point out
that after the matter had been heard, advocates for the respondents filed on
29th June, 1998, heads of argument for the 1st respondent. For the 2nd
respondent, we had heads of argument which were filed by Messrs Musonda
and Company on 22nd September, 1997. We will consider their heads in our
judgment.

The brief history of the case is that the appellants were sitting tenants of the
premises, the subject of the litigation. The tenants were offered the properties
to buy by the 2nd respondent.

The appellants accepted the offers and paid deposits. Later the 2nd
respondent entered into an agreement with the 1st respondent and offered the
properties for sale to the 1st respondent. The 2nd respondent was taken to
court for specific performance by the 1st respondent. The appellants were not
made parties to the action. They were further not given notice about the
action. During the proceedings for specific performance, the parties obtained
a consent judgment. The appellants then took out summons and applied to be
joined to the action and requested the court to set aside the consent judgment.
The District Registrar dismissed the case. The appellants then appealed to the
High Court.

Mr. Mwanawasa for the appellants has submitted three grounds. These are:

1. The appellants as interested parties in the properties the subject of this

action, ought to have been heard by the court before judgment was entered
and accordingly it was competent for them to apply to set aside the judgments
and to be joined as parties to the action.
2. Order 13/9/3 of the R.S.C. was in their favour and the court should have
so ruled..
 300

3. It was immaterial that judgment had already been entered at the time when
the appellants made their application.

On ground 1, Mr. Mwanawasa has submitted that the properties which had
been offered to the appellants had been accepted and deposits of 10% has
been paid. The liquidator later offered the properties to the other people.
Under Order 13/9/3 of the Rules, the appellants’ application to be joined to the
action was dismissed. He has submitted that his clients are interested parties
and ought to have been joined to the action and they were entitled to set aside
the consent order for judgment so that it could be heard.

Advocate for the 1st respondent argued that the appellants lost their legal
rights in the properties and cannot apply to be joined as parties to the matter
after judgment. The advocate argued further that at the time of this action, the
appellants’ only right lay against the liquidator in a suit of damages for breach
of contract, if any. He argued that the application for joinder can only be
made before judgment of the court. He further argued that specific
performance cannot be granted unless there is a concluded contract which is
complete and certain.

For the 2nd respondent, the advocate argued in his written heads of argument
that the fact that they were sitting tenants does not confer a right upon them to
be made party to any proceedings touching or affecting the property in respect
of which he or she is a tenant. Consequently, there was no requirement on the
part of the respondents to serve any notice of the proceedings on the
appellants. They have argued that only a party to the proceedings need to be
served with notice of proceedings.

On the deposits paid by the appellants, the advocates submitted that appellants
were not interested parties who ought to have been made party to the
proceedings between the 1st and 2nd respondents. They have argued further
that the appellants’ application was not made in time. The application was
made after judgment had been obtained. They further supported the finding of
the Judge which was, “In any case I do not see how the applicants could apply
to set aside a consent judgment to which they are not party.”

On ground 2, Mr Mwanawasa in his written heads of argument argued that the

appellants had shown that they were 3rd parties who had locus standi and
have a direct interest in setting aside the consent judgment as such. In terms
of Order 13/9/3 of the Supreme Court Rules, the judgment ought to have been
set aside and the appellants joined to the action as parties.

Advocates for the respondents have argued that Order 13/9/3 Rules of the
Supreme Court was not in favour of the appellants in this matter. They have
argued that that Order applied only to judgments in default and not to consent
judgments.
 301

On ground 3, Mr. Mwanawasa submitted that it was immaterial that judgment

had already been entered at the time when his clients made their application to
be joined to the action and to set aside the judgment.

Advocates for the respondents have relied on the case of The Attorney
General v Aboubacar Tall and Zambia Airways Corporation Limited, (S.C.Z.
Judgment No. 5 of 1995).

From the submissions of the parties it can clearly be seen that there are two
issues which have been raised. The first issue is whether or not the appellants
were interested parties to qualify to be joined to the action. The facts as found
by the learned trial Judge are that the 2nd respondent as liquidator of UBZ
entered into a contract with the appellants to sell the properties to them. The
appellants, accepting the offers, paid deposits. The appellate Judge found that
there was no formal agreement executed between the 2nd respondent and the
appellants but the papers on file provided sufficient memorandum to show
that the agreement the appellants talked about actually existed. This finding
defeats the argument of the advocates of the 1st respondent which spoke about
specific performance and which alluded to the fact that specific performance
cannot be granted until there is a concluded agreement and it is complete and
certain. The finding by the appellant court was that the contract did exist.
This contract was followed up by the payment of deposits of 10%. In equity a
person who has paid deposit should be regarded as the owner. Here the
appellants entered into contract with the 1st respondent. They paid deposits
and a special interest therefore, was created.

The respondents’ counsel have argued that there was no need to serve notice
of action on the appellants since they had no interest in the matter. The facts
show that the appellants had interest in the matter and they should therefore
have been notified of any action taking place concerning the properties on
which they had paid deposits and which were subject of the contract. The
advocates for the respondents have seriously and vigorously argued that the
appellants cannot be joined after the consent judgment had been obtained.

We would like to refer to Rule 67 of the Supreme Court Rules. This Rule
provides that parties can be joined even after judgment. Rule 67 provides:

“When an appeal is called for hearing or at any previous time the court or
Judge thereof may, either on the application of any party interested or of its or
his own motion, direct that the record of appeal, or any respondent’s notice, be
served on any party to the cause or matter who has not been served therewith,
or any other person not already a party to the cause or matter, and may, for the
purpose of such service, adjourn the hearing upon such terms as may appear to
the court or a Judge thereof to be just, and may give such judgment and make
 302

such order as might have been given or made if the parties served with such
record or notice had been original parties.

In any case the court or Judge thereof may direct that any additional
copies of the record or respondent’s notice which may be necessary be
prepared and served by any party upon any person and may prescribe the time
therefore.”

The arguments by the respondents that the appellants cannot be joined after
the consent judgment has been entered cannot be supported. The learned
District Registrar erred in dismissing their application on the ground that they
cannot be joined since a consent judgment had been obtained. In accordance
with our decision in The Attorney General v Aboubacar Tall case, the court
has inherent jurisdiction. The appeal will succeed on this ground alone. The
appeal is allowed. There is no need to consider grounds 2 and 3. In any
event, ground 2 talks about Order 13/9/3. The appellants shall be jointed as
parties to the action and they are hereby joined. There was consent judgment
of which they were not parties and were not aware of a hearing. This
judgment is stayed until the matter is determined. The case is remitted to the
District Registrar to consider the appellants’ application for setting aside
consent judgment. The appeal is allowed.

Appeal allowed
 303

ISAAC TANTAMENI C. CHALI (Executor of the Will of the late

MWALLA MWALLA) v LISELI MWALA (Single woman) (1997) S.J.
22 (S.C.)

SUPREME COURT
E. L SAKALA, CHIRWA AND LEWANIKA, JJ.S.
6TH MARCH AND 3RD JUNE, 1997
(S.C.Z. JUDGMENT NO. 6 OF 1997)

Flynote

Probate - Administration of a Will – non-parties to the action - the extent of

the Court’s power to vary the testator’s Will

Headnote

The deceased was not married up to the time of his death. He had two
children, a son and a daughter, the respondent. The deceased kept the
Respondent in his custody and care from the time she was 11 years of age and
also kept the brother up to the time of his death. The Respondent was
unmarried. She had three children born out of wedlock. In addition to the two
children, the deceased was survived by a mother the sole beneficiary of the
Will. Under the Will the deceased left no provisions for the Respondent and
her brother and further directed that in the event of his mother dying before
him the Estate should devolve to his three sisters namely, Grace Kabanda of
Lusaka, Pamela Tembo of Mhangura in Zimbabwe and Mrs Margaret
Chipoya of Kalulushi to own the Estate jointly and equally. The deceased’s
death was by way of suicide. There was evidence that the deceased had had
sex with the respondent resulting in her getting pregnant while at school. At
the time of the deceased’s death the two were not on speaking terms. The
respondent challenged the deceased’s Will and the High Court varied it in
favour of the respondent and also included the respondent’s child and
brother in the order although they were not parties to the action. The
appellant appealed against the High Court’s decision.

Held:
 304

(i) According to the Rules of Practice governing joinder of parties

and due to non-joinder of parties before trial of the action, other
than the respondent, the learned trial judge was legally and
effectively precluded from considering the interests of non parties

(ii) The trial judge’s order requiring the appellant to administer the
estate “in consultation with” the respondent’s advocates amounted
to an appointment of an additional Administrator and should be
struck out

(iii) The first consideration before varying a Will is that the court
must be of the opinion that a testator has or has not made
reasonable provision for the dependant in the Will. The second
consideration is that the absence of or inadequacy of reasonable
provision for the dependant in the Will would cause hardship. The
third consideration before making the reasonable provision is that
the court may take into account all relevant circumstances.

(iv) Section 20 Act No. 6 of 1989 is a departure from the long

standing recognition of unfettered right of disposition by the testator
of his property. This departure is a limited one as it only confers on
the court a jurisdiction to depart from the dispositions of a testator
by providing reasonable provision for certain of his dependants it is
of the opinion that he had not done so himself. The court’s
jurisdiction to make reasonable provision for the dependant only
arises if it is of the opinion, that it is satisfied, that such provision
has not been made by the testator.

Cases referred to:

1. Diamond v The Standard Bank of South Africa Limited (Executor) and
Others [1965] Z.R.61
2. Simon v National Provincial Bank Limited Limited and Others [1949]2
ALL E.R. 826
3. The Attorney General v Aboubacar Tall and Zambia Airways S.C.Z.
Judgment No.5 of 1995
4. Mbikusita Lewanika & 4 Others v F.J.T. Chiluba SCZ/EP/3&4 of 1996

Legislation referred to:

1. Wills and Administration of Testate Estates Act No. 6 of 1989
Authority referred to: 1
2. Order 14 Rules 1-5 of the High Court Rules Cap 50, and Order 15 Rule 4
of the White Book, 1995
3. Alleviation and Maintenance of Children Act No. 5 1995

For the Appellant: Mr. I.C.T. Chali, of Chali Chama & Company
 305

For the Respondent: Mr. H.B. Mbushi of Ndola Chambers

________________________
Judgment

SAKALA,J.S; delivered the Judgment of the Court.

This is an appeal by the Executor of the Will of the late Mwalla Mwalla
against a judgment of the High Court varying the deceased’s Will. The order
appealed against is couched in the following terms:

1. That the estate should be divided into two. The house left by the deceased
should not be sold but should continue to generate rentals which will continue
to be divided between the 3 parties. I order that half of the estate should be
devolved to the deceased’s mother. If she dies before the Applicant, the house
should then be passed to the first child of the Applicant. Should he die, then
the house should be passed to the Applicant and her brother.

2. The other half should devolve to the Applicant, her brother and her first
child in the following proportions - 15% for the Applicant, 15% for her
brother and 20% for the first child of the Applicant.
The Estate should be administered by Mr. Chali the Executor in consultation
with Mr. Mbushi of Ndola Chambers. I order costs to be borne by each of the
parties.

The facts of the case are that, the deceased was not married up to the time of
his death. He had two children, a son and a daughter, the Respondent in this
appeal and the Applicant in the Court below. The deceased kept the
Respondent in his custody and care from the time she was 11 years of age and
also kept the brother up to the time of his death. The Respondent is
unmarried. She has three children born out of wedlock. In addition to the two
children, the deceased is survived by a mother the sole beneficiary of the Will.

The Will was testated to on 21st January, 1996. It was common cause that
under the Will the deceased left no provisions for the Respondent and her
brother. It was further common cause that under the Will the deceased
directed that in the event of his mother dying before him the Estate should
devolve to his three surviving sisters namely, Grace Kabanda of Lusaka,
Pamela Tembo of Mhangura in Zimbabwe and Mrs Margaret Chipoya of
Kalulushi to won the Estate jointly and equally. The deceased’s death was by
way of suicide.

There was evidence by the Respondent that when she moved to her father’s
house, he had carnal knowledge of her resulting in a pregnancy while she was
still at school. She subsequently gave birth to a boy who is deaf and dumb.
According to the Respondent she could not progress in her education because
 306

of the pregnancy. She only completed grade eight. According to the

Respondent her father was not co-operative with her to continue with her
education but instead organised a forged certificate in her name purporting to
show that she had attained ‘O’ levels when infact she did not. According to
the Respondent’s evidence, sometime in 1987, before she became pregnant,
she had complained to her mother about her father’s involvement with her.
Her mother reported the matter to Mpatamatu Police Station. The police
interviewed him. The deceased, according to the Respondent, promised, in
the presence of the police, to pay her K400,000.00 to set up a business. The
Respondent further testified that on the day her father died, they were not on
talking terms. And when he was making the Will in issue, he only summoned
a Security Guard and a House Worker to witness it. She was not surprised that
he left nothing for her. The Respondent testified in cross-examination that
although she was then 27 years of age, she relied on her deceased father
because of her low level of education which did not enable her to get good
employment. She is now working at the hospital as a cook where, according
to her, her certificate is treated with suspicion.

The mother of the deceased, the sole beneficiary of the deceased’s Will,
testified that she was the dependant of the deceased as much as a dependant of
her other children and the three sisters of the deceased. She explained that
during the life time of the deceased, she used to stay with him once in a while
and that he was responsible for her treatment. She further explained that she
suffers from a heart problem. After the death of her son a sum of K10 million
was taken from his estate for her treatment. She explained that she was
prepared to look after the respondent and her children.

After reviewing the evidence before her, the learned trial judge made several
observations, among them that this was a sad case because the evidence
before her disclosed that the deceased, who did a most unnatural thing to his
daughter, resulting in his daughter becoming pregnant, decided to completely
disregard his responsibility, and that the conduct of the deceased was not only
morally unacceptable but also legally reprehensible. She refused to accept a
suggestion by the appellant’s counsel that the appellant had blackmailed the
deceased by insisting that he was responsible for her first son. According to
the learned trial judge the applicant was right to insist that the deceased, who
was heartless, had to live up to his responsibilities by at least establishing a
business for her. The learned trial judge also pointed out that the Respondent
was right to have reported the conduct of the deceased to the Police. It was
also the learned trial judge’s observation that the respondent had become
permanently disempowered and unable to rise to societal responsibilities

Turning to the issue of varying the Will, the learned trial judge reproduced
Section 20 (1) of the Wills and Administration of Testate Estates Act No. 6 of
1989. She then observed that she had jurisdiction to visit the Will and vary it
by making reasonable provisions for the dependants. She observed that the
 307

respondent and her children as well as her brother were treated like animals by
the deceased. She accepted the decision in the case of Diamond v The
Standard Bank of South Africa Limited (Executors) and others (1) which
according to her decided that if a person has no other serious means of
livelihood other than the deceased, that person is a dependant. She held that
in terms of Section 3 of Act No. 6 of 1989, a wife, husband, child or parent
are dependants at law, and that a child means a child born in or out of
marriage or an adopted child, conceived but not yet born. The learned trial
judge was satisfied that the respondent, although aged 27 years and working,
and her brother aged 25 years were dependant as well as the respondent’s first
born child and the deceased’s mother.

On the question of the deceased not making reasonable provisions for the
maintenance of the dependants and on whether hardship would be caused if no
such provision were made, the court found that apart from the deceased’s
mother, no reasonable provisos were made for the other dependants. On the
authority of the decision in National Provincial Bank Limited and Others (2)
the learned trial judge held that the respondent be given K400,000 as a gift as
promised by the deceased before he died. The court concluded by making the
order set out above, the subject of this appeal.

In arguing the appeal before us Mr. Chali advanced five grounds. He also
informed the court that he was, in addition, relying on the submissions he
made in the court below. The first ground argued was that the learned judge
erred by making orders providing for persons not parties to the action. The
gist of the argument submitted on this ground was that according to the
originating notice of motion there were only two parties to the action, the
appellant and the respondent, this position remained the same up to the
conclusion of the trial. Counsel pointed out that while Order 14 Rules 1-5 of
the High Court Rules Cap 50, and Order 15 Rule 4 of the White Book, 1995
edition provide for joinder of a party, the joinder has to be made before the
trial of the action. He submitted that due to the non-joinder of the persons
other than the respondent, the learned trial judge was legally and effectively
precluded from considering the interests of non-parties to the action. It was
finally submitted on this ground that the orders made by the learned trial
judge in relation to the Respondent’s child and the brother were wrong and
ought to be struck out.

The second ground was that the learned trial judge’s orders requiring the
appellant to administer the estate “in consultation with” the respondent’s
advocate amounted to an appointment of an additional administrator not
justified in the circumstances of the case. Counsel pointed out that there was
no application or prayer in the originating notice of motion before the learned
trial judge for the appointment of an additional executor or administrator. Mr.
Chali submitted that in these circumstances the order made by the learned trial
 308

judge that the appellant should administer the estate “in consultation with” the
respondent’s advocate ought to be struck out.

The third ground was that the learned trial judge’s decision of varying the will
was contrary to the letter and spirit of the provisions of the Wills and
Administration of The Estates Act No. 6 of 1989 and was unjustified in the
circumstances of the case. In arguing this ground Mr. Chali referred the court
to the statutory definition of “dependent” and “child” as found in section 3
of Act No. 6 of 1989 and section 2 of the Alleviation and Maintenance of
Children Act No. 5 1995. Counsel submitted that under these statutes the
respondent was effectively excluded as a “dependant” on account of the fact
that she was a working person with means of her own and also on account of
her age given as 27 at trial. Counsel pointed out that under section 20 (2) of
Act No. 6 of 1989 matters for consideration before varying the terms of a Will
are “children” under 18 years or are in school or disabled. Counsel further
pointed out that other important matters as provided under section 21 of the
Act are the testator’s reasons for not making any particular provision for a
dependant; the past present and future capital or income of such dependant;
and the dependant’s conduct in relation to the testator. Mr. Chali submitted
that on the evidence on record, reasons have been given why the deceased
made the will in the manner he did, among them being the respondent being in
employment, accommodated by her employers, and her own testimony of her
alleged intimate relationship with her father and if true made it obvious as to
what led to the testator’s death. Counsel submitted further that the testator
was blackmailed into his death by the respondent and therefore the respondent
ought not to benefit from the deceased’s estate. It was Mr. Chali’s final
submission on this ground that, all these matters although put before the
learned trial judge, were not taken into account before the judge decided to
vary the Will.

The fourth ground was that the learned trial judge’s orders as to the devolution
and administration of the estate, including the order concerning the house, are
not in the best interests of the beneficiaries of the estate. Mr. Chali argued
that should this court consider that the respondent ought to benefit from the
said estate it should then interfere with the extent of the interest to which the
respondent ought to so benefit on account that the Respondent was in
employment and on account of her conduct. Counsel submitted that the
interests of the respondent and her grandmother cannot be said to be at par.

The fifth ground related to the order of costs. The gist of the submission on
this ground was that the order will operate unfairly against the appellant.
Counsel contended that the learned trial judge’s order as to costs ought to
have specifically provided for the appellant’s cost of action to be borne out of
the estate because it is the duty of an executor to institute or defend actions to
protect the interest of the estate if the institution or defence of the action is
 309

deemed reasonable. Mr. Chilli urged the court to uphold the appeal and vary
the findings and orders of the court below.

In his brief reply, Mr. Mbushi submitted that under section 3 of Act No. 6 of
1989, the respondent and her deaf and dumb child as well as her brother
qualify and are therefore entitled to reasonableprovision under the will. He
further submitted that the orders made by the learned trial judge were all
reaasonable. He also submitted that the other three beneficiaries namely, the
sisters of the deceased were not destitutes and the learned trial judge rightly
excluded them from benefiting from the house.

In dealing with this appeal we have been very mindful of the fact that the
matter was decided upon by one of our learned senior female judges, and
involving a female applicant. We are, however, constrained to comment on
some of the observations and findings made by the learned trial judge which
in our considered opinion appear to have heavily influenced the learned trial
judge in making the orders she did. Our observations will be based on some
aspects of the evidence that was before the learned trial judge.

According to the learned trial judge this was a sad case because the evidence
disclosed that the deceased did an unnatural thing to the applicant. While we
accept that there was some evidence, for that matter from the respondent
herself, the evidence was in our view not conclusive and not corroborated.
Above all, there was also evidence that the respondent who is unmarried has
two other children. The finding that the conduct of the deceased was not only
morally unacceptable but also legally reprehensible was in our view not
justified. On the available evidence it was not fair to the deceased, when he
could not defend himself, to conclude that he was heartless. The observation
that the respondent had become permanently disempowered and unable to rise
to societal responsibilities was not supported by the evidence which clearly
established that the respondent was working and is accommodated by her
employers. The determination of whether the deceased’s Will had to be
varied depended on an interpretation of section 20 (1) and 3 and 21 of Act No.
6 of 1989. But before dealing with the issues of interpretation it is necessary
to dispose of the other grounds raised by counsel for the appellant.

One of the grounds argued by Mr. Chali related to parties to an action. He

submitted that the inclusion of the respondent’s child and her brother in the
deceased’s Will was wrong in law and should be struck out as not being
parties to the action at any stage.

Order 14 of Cap 50 provides for various situations of parties to an action. It

provides for when a person can be made a party either at the instance of the
person suing or being sued or at the instance of the court. The court can also
strike out a party where it is shown there is a misjoinder. The contention by
Mr. Chali was that a person should be made a party to or if made a party be
 310

struck out from an action before the action is concluded. In the case of The
Attorney -General v Aboubacar Tall and Zambia Airways (3) the High Court
made the Attorney General a party to the proceedings after the close of the
defence, but before judgment, which had already been prepared in draft form,
had been delivered. This court upheld the learned trial judge on appeal. Very
recently, this court struck out the Electoral commission as party to an election
petition for misjoinder before the hearing of the election petition in Mbikusita
Lewanika and 4 Others v F.T.J. Chiluba S.C.Z./E.P. 3 & 4 of 1996. We totally
agree with Mr. Chali that according to the Rules of Practice governing joinder
of parties and due to non-joinder of parties before trial of the action, other
than the respondent, the learned trial judge was legally and effectively
precluded from considering the interest of non parties. The orders made by
the learned trial judge in relation to the respondent’s child and brother were, in
our view, wrong in law and are struck out. This ground of appeal therefore
succeeds.

The next ground argued by Mr. Chali was that the order requiring the
appellant to administer the estate “in consultation with” the respondent’s
advocates amounted to an appointment of an additional Administrator. The
contention of Mr. Chali is that this remedy was not pleaded and not prayed for
and must therefore be struck out. We agree with counsel. This order
requiring the appellant to administer the deceased’s estate “in consultation
with” the respondent’s advocates is struck out. This ground of appeal also
succeeds.

The other ground not related to the interpretation of the Statutes relates to
orders of the devolution and administration of the estate of the house.
Counsel urged the court to interfere with the extent of the interest to which the
respondent ought to benefit if the court considers that she ought to benefit.
Counsel argued that on the evidence that she is employed, and the evidence as
to her conduct, her interest and those of her grandmother cannot be said to be
at par. While we agree with this submission it is our considered view that
success or failure of this ground depends on the question of whether the Will
should or should not be varied.

The other ground argued related to costs. The gist of the submission by
counsel was that to order costs against the appellant operates unfairly because
it is the duty of any executor to institute or defend action against the estate if
the institution or defence of an action is deemed reasonable. Counsel
submitted that the costs of the action should be borne out o the estate. We
agree with counsel. The proper order should have been that costs be borne out
of the estate. This ground of appeal also succeeds.

The ground on statutory provisions was that the variation of the Will was
contrary to the letter and spirit of the provision of the Wills and
 311

Administration of Testate Estates Act No. 6 of 1989. The relevant Sections of

that Act are 20(1) 3, and 21 (1) Section 20(1) reads as follows:

''20.(1) If, upon application made by or on behalf of a dependant of the

testator, the court is of the opinion that a testator has not made reasonable
provision whether during his life time or by his Will, for the maintenance of
the dependant, and that hardship will thereby be caused, the court may, taking
account of all relevant circumstances and subject to such conditions and
restriction as the court may impose, notwithstanding the provisions of the
Will, order that such reasonable provision as the court thinks fit shall be made
out of the testator’s estate for the maintenance of that dependant.''

The language of the section is clear. It does not suggest the rewriting of the
Will by the court. The first consideration before varying a Will is that the
court must be of the opinion that a testator has or has not made reasonable
provision for the dependant in the Will. The second consideration is that the
absence of or inadequacy of reasonable provision for the dependant in the
Will would cause hardship. The third consideration before making the
reasonable provision is that the court may take into account all relevant
circumstances.

Section 3 defines dependant to mean a wife, husband, child or parent. The

age at which one ceases to be a child is not specified in the Act. But the age
of a minor is given as a person who has not attained the age of 18 years. On
the other hand section 20(2) (b) (iii) acknowledges that where the reasonable
provision order provides for periodical payments, it shall provide for
termination not later than, “in the case of a child, his attaining the age of
eighteen years or upon leaving secondary school, or under graduate university
or whichever is the later”. Mr. Chali referred the court to section 2 of the
Affiliation and Maintenance of children Act No. 5 of 1995 where “child” has
been defined to mean a person below the age of eighteen years whether a
marital or non-marital child from the statutory definition of “dependant” and
child”. Mr Chali submitted that the respondent is effectively excluded from
being a “dependant” on account that she is a working person with means of
her own and on account of her age of 27 years as given at the trial. Mr. Chali
also pointed out that matters for consideration as provided in section 20(2) of
Act No. 6 of 1989 seem to concern themselves with a “child” under 18 years,
or in school or disabled. Counsel also drew the court’s attention to matters to
be considered by a court when varying the Will as provided under Section 21
(1) of Act No. 6 of 1989. Among these are: the testator’s reasons for not
making any provision for a dependant; past, present and future capital or
income of such dependant; and the dependant’s conduct.

Mr. Chali submitted that all these matters were not taken into account or
considered by the learned trial judge before varying the Will.
 312

We have anxiously examined the learned trial judge’s judgment and her
considerations and findings. As already observed, the evidence from the
respondent that the deceased made her pregnant, seem to have heavily
influenced the learned trial judge’s findings. While she alludes to section 20
(1) of Act No. 6 of 1989, and cited it, she seems to have only been concerned
with the issue of her jurisdiction “to visit the Will and vary it making
reasonable provisions for the dependants”. In our view the issue of
jurisdiction was not in dispute.

With all the respect to the learned trial judge, it appears to us that she totally
misapprehended the decision in Diamond v The Standard Bank of South
Africa Limited (Executor) and Others (1). According to her the case dealt
with the definition of dependant at law and her understanding of the case was
that if a person has no other serious means of livelihood other than the
deceased, that person was a dependant. This was an incorrect and unfair
interpretation of the decision. We have also visited that case. The issue of
dependant in that case never arose. And it could not arise because the
application was by wife and two children who were before the age of 18
years. The court in that case was only concerned with whether the provision
made by the deceased was reasonable. In other words the deceased made
provisions for his wife but she complained that it was not reasonable. Hence
the court varied it by increasing it.

We are satisfied that on the evidence as a whole, the learned trial judge in the
present case, did not apply the proper principles of law and her findings were
not supported by a proper approach to the evidence. Consequently, her
conclusions could not be correct and cannot be supported. The ground based
on the interpretation of statutory provisions also succeeds.

Our conclusion in this appeal which is based on the law as it stands may
appear morally hard. But it must be recognised that section 20 Act No. 6 of
1989 is a departure from the long standing recognition of unfettered right of
disposition by the testator of his property. This departure is a limited one as it
only confers on the court a jurisdiction to depart from the dispositions of a
testator by providing reasonable provision for certain of his dependants if it is
of the opinion that he had not done so himself. The court’s jurisdiction to
make reasonable provision for the dependant only arises if it is of the opinion,
that it is satisfied, that such provision has not been made by the testator.

For the reasons we have given in dismissing the ground based on statutory
provisions and the other grounds, we are satisfied that the respondent is in law
not covered by he definitions of “dependant” or “child”.

The ground of appeal based on the interpretation of statutory provisions also

succeeds. We therefore allow this appeal. All the orders by the learned trial
judge are set aside. We also set aside the order relating to a gift of
 313

K400,000.00 which in our view was not proved. The costs of this appeal and
in the court below will be borne by the estate.

Appeal Allowed

MAGNUM (ZAMBIA) LIMITED v BASIT QUADRI

(RECEIVERS/MANAGER) & GRINDLAYS BANK INTERNATIONAL
ZAMBIA LIMITED (1981) Z.R. 141 (H.C.)

HIGH COURT
MOODLEY, J.
24TH JUNE, 1981
(1981/HN/456)

Flynote

Civil procedure - Company under receivership - Right of action - Whether has

locus standi independent of its receiver/manager - Whether can sue its
receiver/manager.

Company - Receivership - Legal proceedings where company under

receivership - Who can institute.

Headnote

A preliminary issue was raised in this case as to whether it would be in order

for the court to allow the proceedings to continue on the basis that the
plaintiff should be Magnum (Zambia) Limited when in fact this company was
already under receivership and the receiver/manager appointed under a
debenture was the first defendant.

The learned counsel for the plaintiff argued that the principles of agency
should apply in this case and that the assets of the company should not be
interfered with simply because it could maintain an action against the
receiver if it was found that the receiver had acted unlawfully or had
misconducted himself in any way.

The defendant on the other hand, contended that the plaintiffs could not
properly bring an action in the present form against the defendants when it
was apparent that the plaintiff was a company under receivership and that the
first defendant was the receiver/manager of the said plaintiff company
appointed by the second defendant, under the terms of a debenture entered
into between the second defendant and the plaintiff.
 314

Held:

(i) A receiver who is an agent of the company under receivership is

there to secure the interests of the debenture holder and in those
circumstances the company concerned is debarred from instituting
legal proceedings against its receiver/manager.

(ii) A company under receivership has no locus standi independent

of its receiver. As long as a company continues to be subjected to
receivership, it is the receiver alone who can sue or defend in the
name of the company.

Cases referred to:

(1) Pender v Lushington [1877] 6 Ch. 70.
(2) Re Clifton Place Garage Ltd [1970] 1 All E.R. 35.
(3) Re B Johnson & Co. Ltd. [1955] 2 All E.R. 775.

For the plaintiff: R.B. Mumba of Ezugha, Musonda and Co, & Dr
Mushota of Lusaka Partners.
For the 1st defendant: S. Malama of Jacques & Partners.
For the 2nd defendant: H. Chilonga of A.E. Clark & Co.

______________________________________
Judgment

MOODLEY, J.: On the 2nd of June, 1981, this Court granted an Ex parte
summons for an interim injunction at the instance of the plaintiff Magnum
(Zambia) Limited restraining the first defendant, Basit Quadri,
receiver/manager, from dealing with the plaintiff's assets until such a time that
he accounts for his receipts and payments. Subsequently, the plaintiff caused a
summons for a committal order for contempt of Court to issue in respect of
the first defendant-on the grounds that he had refused to abide by the terms of
the interim injunction. The matter

p143

was then adjourned so that the first defendant could appear before this Court
to answer the charge of alleged contempt of court. He was represented by Mr
Malama of counsel. As a result of the discussions between the court and
counsel for both parties it was decided that in the light of the fact that the acts
complained of in the interim injunction had been committed prior to the date
when the interim injunction was issued, the said interim injunction should be
discharged and the issues should be determined by a speedy trial. The parties
were given leave to dispense with pleadings and they were required to file
affidavits dealing with the issues that had arisen in the matter. In the light of
 315

these directives the hearing commenced this morning. The defence contended
that the plaintiffs, as presently described, cannot properly bring an action in
the present form against the defendants when it was apparent that the plaintiff
was a company under receivership and that the first defendant was the
receiver/maager of the said plaintiff company appointed by the second
defendant under the terms of a debenture entered into between the second
defendant and the plaintiff.

The Court then decided to determine as a preliminary issue the question

whether it would be in order for this Court to allow the proceedings to
continue on the basis that the plaintiff should be Magnum (Zambia) Limited
when in fact this company was already under receivership and the
receiver/manager appointed under a debenture was the first defendant.

Mr Mumba for the plaintiff has argued that the principles of agency should
apply in this case and that the assets of the company should not be interfered
with simply because it was under receivership and that the company itself
could maintain an action against the receiver if it is found that the receiver had
acted unlawfully or had misconducted himself in any way. He submits that the
receiver was appointed under debenture and Magnum (Zambia) Limited
although under receivership was the principal in this case and that where an
agent acts to the detriment of his principal, as in this case, then the principal
had the right to bring proceedings against his agent to account for his actions.
He cites the cases of Pender v Lushington (1) and Re Clifton Place Garage Ltd
(2) which in the opinion of the court have no direct relevance to the issues in
this case. He contends that the only reasonable course that could be taken in
such circumstances is for the company to institute proceedings against the
agent who in this case was the receiver, if it was found that the agent had
acted mala fide or unlawfully. He submits that the company is in existence at
the present moment, and has not been wound-up or liquidated. It would be
absurd to permit the receiver to act against the interests of the company and it
was equitable therefore for the company to sue its agent, namely, the receiver
in the circumstances.

Mr Malama for the first defendant, the receiver/manager argues that the kind
of agency in issue is different and distinct from agency as understood under
the common law. There was little in common between an agent under
common law and an agent appointed under a debenture. He submits that Mr
Mumba's argument would be valid if the agency was a common law type of
agency. The receiver/manager on the other

p144

hand was the agent of the company and this peculiar relationship resulted
from the instrument of appointment which, in this case, was the debenture. An
agency resulting from a receivership had little in common with the ordinary
 316

type of agency, because the powers of an agent in respect of a receivership

were clearly set out in the instrument of appointment of a receiver. Thus
where a receiver under a debenture misconducts himself in any way the
company under receivership had no powers to dismiss the receiver. The
powers of dismissal are vested in the debenture holder. He cites the case of Re
Johnson & Co. Ltd (3), to support his argument that a receiver/manager who
is an agent of the company owes no duty to the company. The appointment of
a receiver by the debenture holder empowers the receiver to realise,
unimpeded, the debenture holder's security. In those circumstances, the
company as such could not maintain an action against the receiver because it
is the receiver who in effect sues in the nam of the company and defends in
the name of the company. Thus in this action, in the name of the company, the
receiver is sued and, in the name of the company, the receiver defends. The
proceedings where the company under the receivership of the first defendant
has in fact sued the first defendant in his capacity as receiver/manager, were
irregular and that the action which has been commenced in its present form
should not be allowed to proceed.

I have considered the arguments in this matter and I have looked at the
authorities cited in support of the rival arguments. I must say that none of
these authorities cited bear any direct relevance to the preliminary issue.
Paragraph 885 of Halsbury's Laws of England (Fourth Edition) reads as
follows: "Where the receiver is appointed under a document which provides
that the person appointed receiver is to be the agent of the company, and that
the company is alone to be answerable for his acts, contracts, and defaults,
neither the trustees nor the debenture holders are personally liable in respect
of contracts entered into by him, even in respect of contracts entered into after
the company has gone into liquidation. When a receiver is declared to be the
agent of the company he has power to sue in its name . . .".

In Kerr on Receivers (Fourteenth Ed.) at page 174 it is stated: ''A receiver

acquires no right of action by virtue of his appointment: he cannot sue in his
own name as receiver, e.g. for debts to a company, or to parties over whose
assets he has been appointed receiver; nor can the court authorise him to do
so. In such cases he must maintain the action in the name of the person or
persons who would be entitled to sue from his appointment. A receiver may,
however, acquire a right of action to sue in his own name: for instance, as the
holder of a bill of exchange; etc." At page 308 it is stated that debentures and
debenture trust deeds usually provide in express terms that the receiver was to
be agent for the company, as in the case of the statutory power, but that the
omission to state in the debenture in express term that the receiver was to be
the agent of the company did not necessarily prevent him from doing so. The
question was of construction in each case. It goes on to say that the receiver's
agency for the company was one with very peculiar incidents.

p145
 317

"Thus the principal may not dismiss the agent, and his possession of his
principal's assets is really that of the mortgagee who appointed him. He owes
no higher duty to the principal than that of a mortgagee in possession."
Halsbury's Laws of England (Third Edition) paragraph 723 reads: "The party
having the conduct of the action in which the receiver has been appointed is
the proper person to apply to the Court. A receiver should not make
application in his own name, unless the parties to the action have refused to do
so or have no locus standi."

In the case of Re B. Johnson & Co., Limited (3) Sir Raymond Evershed,
M.R., at page 779 states as follows: "It has long been recognised and
established that a receiver and manager so appointed is, by the effect of the
statute law, or of the terms of the debenture, or both, treated as the agent of
the company, in order that he may be able to deal effectively with third parties
while in possession of the company's assets and exercising the various powers
conferred on him. In such a case as the present, at any rate, it is quite plain
that a person appointed as receiver and manager is concerned, not for the
benefit of the company but for the benefit of the mortgage bank, to realise the
security: That is the whole purpose of this appointment; and the powers which
are conferred on him . . are . . . really ancillary to the main purpose of the
appointment which is the realisation by the mortgagee of the security . . . by
the sale of assets. This case dealt with the winding-up of a company, namely,
B. Jonson & Co. Ltd. The bank had appointed A as receiver and Manager. A
immediately terminated the active operations of the company and
subsequently the unsecured creditors of the company presented a petition for
the compulsory winding-up of the company. A contributory of the company
issued a summons in the winding-up under the Companies Act, 1948, to have
examined the conduct of A while acting as receiver and manager until the
winding-up order was made. Now it should be observed that the company
under liquidation was not cited as the plaintiff in this matter. The plaintiff in
that case was a contributory of the company and the defendant was the
receiver whereas in the instant case the plaintiff company is described as a
company which was under receivership and the defendant was its own
receiver.

A receiver who was an agent of the company under receivership was there to
secure the interests of the debenture holder and in those circumstances the
company concerned was debarred from instituting legal proceedings against
its receiver/manager. It would be an absurd proposition to suggest otherwise.
Apart from principles of law, mere common sense would dictate against the
argument put forward by Mr Mumba. If the action was allowed to proceed in
its present form, it would be tantamount to suggesting that the receiver can
institute proceedings against himself. Quite clearly a company under
receivership has no locus standi independent of its receiver. As long as a
company continues to be subjected to receivership, it, is the receiver alone
 318

who can sue or defend in the name of the company. Thus on the preliminary
issue, I hold that legal proceedings in the instant case have been irregularly
commenced because, in law, the plaintiff company which is under
receivership is precluded from suing its receiver/manager. Accordingly, the
auction in its present form is dismissed.

Action dismissed

AVALON MOTORS LIMITED (in Receivership) v BERNARD LEIGH

GADSDEN MOTOR CITY LIMITED (1998) S.J. 26 (S.C.)

SUPREME COURT
NGULUBE, C.J., SAKALA, CHIRWA, MUZYAMBA AND
LEWANIKA,JJ.S.
9TH APRIL AND 4TH AUGUST, 1998.
(S.C.Z. JUDGMENT NO. 7 OF 1998)

Flynote

Company Law - Receiver - Legal status of receiver - Whether he can sue or

be sued in his own name

Headnote

The company borrowed money from a bank and upon defaulting, the bank
appointed the first respondent to be the receiver. There were allegations to
the effect that the receivership was being conducted in a deliquent fashion to
the serious disadvantage of the company, the shareholders and all concerned.
As a result a new receiver was appointed. Meanwhile, an action was
commenced against the former receiver who is the first respondent and also
against the second respondent who sold the company's properties and assets
allegedly at a grossly undervalued or give-away price. Such action was
commenced in the company's name and a preliminary objection was taken by
the defendants that the director and shareholder was not entitled to sue in the
name of the company; only the new receiver could do so. The objection was
sustained; the action was dismissed leading to this appeal

Held:

(i) Receivers as well as liquidators occupy a fiduciary relationship

and are liable for their wrongdoing in relation to the mortgaged
property

(ii) Whenever a current receiver is the wrongdoer (as where he acts

in breach of his fiduciary duty or with gross negligence) or where
the directors wish to litigate the validity of the security under which
 319

the appointment has taken place or in any other case where the vital
interests of the company are at risk from the Receiver himself or
from elsewhere but the Receiver neglects or declines to act, the
directors should be entitled to use the name of the company to
litigate.

For the appellant: Mr M.F.Sikatana, Veritas Chambers.

For 1st respondent: Mr A .W. Wood, Wood and Company.
For 2nd respondent: Mr M. Mulenga, Mulenga and Company.
_________________________________________
Judgment

NGULUBE,C.J.: delivered the judgment of the court.

When we heard this appeal, we allowed the appeal and reversed the dismissal
of the action upon the objection which was upheld below as to who should
have been the plaintiff. Instead, we allowed an application to substitute the
plaintiff so that the Director and shareholder who had sworn the affidavits in
the case became the plaintiff and the action to proceed accordingly. We said
that we would consider the company's own position by the new receiver in the
reserved judgment. We also ordered that the costs so far occasioned by the
shareholder/Director proceeding in the name of the company would be for the
respondents in any event. We indicated the result of the appeal to facilitate
the parties making progress in the main action. We said our reasons for the
decision would be given later and this we now do.

p27

The facts can be stated very briefly. the company borrowed money from a
bank and upon defaulting, the bank appointed the first respondent to be the
receiver. There were allegations to the effect that the receivership was being
conducted in a deliquent fashion to the serious disadvantage of the company,
the shareholders and all concerned.

We need not here go into detail concerning the nature of wrongdoing which
was alleged save to note that an application was successfully made to the High
Court to remove the first respondent from the receivership, in terms of the
relevant provisions of the Companies Act. We understand that a new receiver
was appointed. Meanwhile, an action was commenced against the former
receiver who is the first respondent and also against the second respondent
who was sold the company's properties and assets allegedly at a grossly
undervalued or give-away price. Such action was commenced in the
company's name and a preliminary objection was taken by the defendants that
the director and shareholder was not entitled to sue in the name of the
company; only the new receiver could do so. The objection was sustained; the
action was dismissed leading to this appeal. It is not necessary for us to make
 320

any comments on the merits of the case which is to be tried below. Indeed, it
would be improper for us to do so. It should also be noted that, contrary to the
understanding of the real complainant (the plaintiff since substituted), the
court below did not say anything which could suggest that a receiver or for
that matter a former receiver is immune from suit for wrongdoing. There is
no such blanket exemption or immunity. Receivers as well as liquidators
occupy a fiduciary position. Learned Counsel for the 1st respondent very
fairly and properly outlined the correct legal propositions in such matters in
his extremely helpful and learned heads of arguments. It was thus common
cause that the Receiver's fiduciary relationship with the company means that
he/she owes it duties similar to those owed by a mortgagee. These include an
obligation to exercise the powers conferred by the security in good faith as
well as a duty of care. As the learned authors of Kerr on Receivers and
Administrators (17th Edition) observed at pages 342 - 343:

"Notwithstanding the relationship of principal and agent, however, the

mortgagor cannot dismiss a Receiver since, for valuable consideration, he has
committed the management of his property to an attorney whose appointment
cannot be interfered with. As regards negligence, the Receiver cannot be in
any better position than a mortgagee in possession. Hence, the Receiver is
liable to the mortgagor in respect of gross or wilful negligence in respect of
his acts whilst in possession of the mortgaged property or its produce."

There is a variety of other situations giving rise to duties and liability on the
part of the Receiver for wrongdoing. It is here unnecessary to repeat these
since recourse can be had to texts like Halsbury's Laws of England, 4th Ed;
Vol.7 Kerr on Receivers and other reference works.

What is certain is that companies under receivership are not left without
remedies in the event of wrongdoing by the Receiver. Misfeasance, gross
negligence, anything amounting to fraud and various other breaches or

p28

transgressions can result in a Receiver or former Receiver being sued. The

true issue in this case was "who should sue"; or when can the directors and
shareholders of the company still under receivership be allowed to maintain
an action in the name of the company?

There can be no doubt whatsoever that the shareholders and Directors, as well
as anybody who is properly interested and who has beneficial interests to
protect can sue a wrongdoing Receiver or former Receiver in their own names
and in their own right. In the case of an action against a former Receiver, a
current Receiver if so minded can join the company in the action. However,
as far as persons who are not Receivers suing in the company's name is
concerned, we agree with Mr Wood that the circumstances when this will be
 321

permitted should be limited. For instance, it would be improper for a current

Receiver being sued in his own name by the company as this would amount to
suing himself. See Magnum (Zambia) Limited v Basif Quadri
(Receiver/Manager) and another (1981) ZR 141 (which held, inter alia, that a
company under receivership has no locus standi independent of its Receiver).
However, whenever a current receiver is the wrongdoer (as where he acts in
breach of his fiduciary duty or with gross negligence) or where the directors
wish to litigate the validity of the security under which the appointment has
taken place or in any other case where the vital interests of the company are at
risk from the Receiver himself or from elsewhere but the Receiver neglects or
declines to act, the directors should be entitled to use the name of the
company to litigate. There is no need for us to be exhaustive in our remarks
nor to say any more in this case which is on-going in the court below

It was for the foregoing reasons that the appeal was allowed and substitution
of the plaintiff made, in keeping with the spirit of Order 14 of the High Court
Rules relating to joinder, non-joinder and misjoinder of parties.

Appeal allowed
 322

N B MBAZIMA AND OTHERS JOINT LIQUIDATORS OF ZIMCO

LIMITED (IN LIQUIDATION) AND REUBEN VERA

SUPRME COURT
SAKALA Ag. DCJ, CHAILA AND CHIBESAKUNDA,JJS
21ST SEPREMBER, 2000 AND 23RD FEBRUARY, 2001
(SCZ No. 6 OF 2001)

Flynote

Industrial Relations Court – Jurisdiction

Headnote

This appeal was against a decision by the Industrial Relations Court.

1. Declaring that as a sitting tenant/occupant of the flat in issue, he was

entitled of the first option to purchase it;

2. Declaring that the 2nd respondent urges the 1st respondent to sell the
property in issue to him; and

3. Damages for psychological and mental torture occasioned on him by the

said conduct of the liquidators.

The learned counsel have advanced a number of arguments before this court.
We will not deal with these arguments as we hold the view that the important
point is one of jurisdiction of the IRC. The law allows only the high court to
entertain issues relating to impugning of certificate of land. We wish to state
that in any matter where there is uncertainty as to whether the issues to be
decided are of a conveyancing nature or labour disputes, it is advisable that
the parties proceed before the High Court which court would deal with these
issues at the same time.

Held:

(i) The IRC lacked jurisdiction in conveyancing matters. The

appeal was successful and the order made by the IRC was set aside.
 323

Legislation referred to:

The Industrial and Labour Relations Act, Section 85 (2) Cap. 269 of the Laws
of Zambia.

Cases Referred to:-

Kawana Mwangela v Ronald Bwale Nsokoshi & Ndola City Council SCZ
Judgment No. 29 of 2000.

For the appellants; Mr. R, Mainza of Messrs. Makala and Company, Lusaka.
For the Respondent : Mr. C. Muneku of Messrs Charles & charles
Associates, Lusaka.

Judgment

Chibesakunda JS delivered the judgment of the Court.

This is an appeal against a decision of the Industrial Relations court (IRC) in a

complaint by Rueben Vera (now the deceased represented by his administrator
now the respondent) against N B Corporation Limited (ZIMCO) (Now the
appellants, before us). Before the IRC, the Attorney General, who has not
appealed to this court was the second respondent .

The respondent had complained before the IRC seeking the following:-

1. A declaration that as a sitting tenant/occupant of the flat in issue, he is

entitled to the first option to purchase it;

2. A declaration that the 2nd respondent urges the 1st respondent to sell the
property in issue to him; and

3. Damages for psychological and mental torture occasioned on him by the

said conduct of the liquidators.

The IRC held in favour of the respondent and ruled that because of the
discrimination, the sale of Flat 2 of Sub-division 32 of Farm 28a to Miss
Charity Kowa was null and void. The appellants are challenging that
decision.

The story before the IRC was that the complaint, now the respondent was
employed by the National Hotels Development Corporation (NHDC), a
former subsidiary of Zambia Industrial Mining Corporation Limited (ZIMCO)
in 1983. In 19993 he was transferred to one of ZIMCO’s department known
 324

as International Catering Services (ICS) as the Chief Accountant. At the time

ICS was being dissolved, the respondent occupied Flat No. 2, Subdivision 32
of Farm No. 28 which he occupied by virtue of his employment status. In that
same year, 1993, ZIMCO issued a circular dated 30th of June 1993 stating
that ICS was one of the units transferred to ZIMCO as a subsidiary company.
It was also his evidence that when ICS was transferred to ZIMCO he
continued to enjoy the same conditions of service which other ZIMCO
employees enjoyed. In his view, therefore, as a ZIMCO employee, he was
entitled to be offered the flat in question to purchase as part of his conditions
of service. However, the flat in question was offered to Miss Charity Kowa,
another employee of ZIMCO, who purchased it. The evidence for the
appellants was that even at the time the flat was given to the deceased, the
actual tenant of the flat was not the deceased but the National Hotels
Development Corporation. And National Hotels Development Corporation
was perpetually in rental arrears and as such did not qualify to purchase the
flat in question. The appellants also testified that the flat in question was
rightly offered to Charity Kowa as an employee of ZIMCO, therefore the
Industrial Relations court misdirected itself.

The learned counsel for the appellant before the Industrial Relations Court
challenged that court’s jurisdiction referring to section 85(2) and Section 108
(2) of the Industrial and Labour Relations Act. Cap. 269. The Industrial
Relations court rejected this challenge and held that this was a matter related
to employment and as such they had jurisdiction to deal with it.

The learned counsel have advanced a number of arguments before us. We

will not deal with these arguments as we hold the view that the important
point, which was raised at the IRC, which IRC glossed over is one of the
jurisdiction of the IRC. We are aware that Mr. Mainza did not advance this
argument before us. Be that as it may be, we will deal with it. Section 85(2)
of the Industrial and Labour Relations Act provides that;-

“The court shall have jurisdiction-

(c) Generally to inquire into and adjudicate upon any matter affecting the
collective rights, obligations and privileges of employees, employers and
representative organisations or any matter relating to industrial relations.”

Section 108 of the Industrial and Labour Relations Act also provides that:-

“Any employee who has reasonable cause to believe that the employee’s
services have been terminated or that the employee has suffered any other
penalty or disadvantage or any prospective employee who has reasonable
cause to believe that the employee has been discriminated against, on any of
the grounds set out in subsection (1) may within thirty days of the occurrence
which gives rise to such belief lay a complaint before the court.
 325

Quite clearly Section 85(2) and 108 of the industrial and Labour Relations Act
show that the jurisdiction of the Industrial Relations Court is limited to
settling of labour disputes falling under the Act. It is an alternative forum to
the High Court only in cases of labour disputes. The IRC has limited but
exclusive jurisdiction in such labour disputes as provided in section 85(2) and
108 of the Industrial and Labour Relation Act, Cap. 269. In our view, in those
proceedings before the Industrial Relations Court and even the present
proceedings before us, the Respondents were and are impugning the
certificate of title issued to Miss Charity Kowa under the Industrial and
Labour Relations Act. The IRC has no jurisdiction in conveyancing matters.
Such issues can only be dealt with by the High Court. In Kawana Mwangela
v Ronald Bwale Nsokoshi and Nodla City Council (1) we considered the
jurisdiction of the Lands Tribunal. In that case, we made the same point and
held that:-

“in our considered opinion a reading of sections 15 and 22 of the Land Act
shows quite clearly that the jurisdiction of the lands Tribunal is limited to the
settlement of “land disputes” under the acts and is not an alternative forum to
the High court where parties can go to even for the issuance of prerogative
writs such as mandamus. In these proceedings the appellant was seeking to
impugn a Certificate of Title issued to the 1st respondent and under the lands
and Deeds Registry Act, Cap. 185 of the Laws only the High Court has
jurisdiction to entertain such proceedings.”

The law allows only the High Court to entertain issues relating to impugning
of certificate of land. The Industrial Relations Court has no such uncertainty
as to whether the issues to be decided are of a conveyancing nature of labour
disputes, it is advisable that parties should proceed before the High court
which court would deal with all these issues at the same time. The IRC,
therefore, lacked jurisdiction in their matter. The appeal is therefore
successful. The order made by the Industrial Relations Court is set aside. The
Respondent’s administrator, if he so wishes, may start fresh proceedings
before the High Court. The cost of this appeal to follow the event, in default
of agreement to be taxed.
 326

CREDIT AFRICA BANK LIMITED (In Liquidation) v ELIAS NAMO

KUNDIONA

Supreme Court
Lewanika, DCJ, Mambilima and Chitengi, JJS
5th November, 2002 and 23rd July, 2003
(SCZ Judgment No. 9 of 2003)

Flynote

Company Law – Liquidation – Purpose of leave to proceed against a

company in liquidation.

Headnote

The facts giving rise to this appeal can be briefly stated. The respondent was
employed by the appellant as Deputy General Manager. On 24th November,
1997 the appellant terminated the respondent’s contract of employment. On
24th June, 1998, the appellant now in liquidation commenced an action
against the respondent to recover some K72,575,987.41 in respect of some
staff loans advanced to the respondent by the appellant while the respondent
was still in the appellants employment. As the appellant was in liquidation
the respondent sought leave of the court to proceed with the counter claim
against the appellant. At the hearing of the application, an objection was
raised against the application on the ground that since Order 102 (2) of the
White Book 1995 is based on the 1985 English Companies Act which is or
applicable to Zambia, the application was misconceived. The learned trial
Judge upheld the objection and dismissed the application. After the
dismissal, the matter was transferred to another High Court Judge. The
respondent made a fresh application for leave to proceed against a company
in liquidation before the second High Court Judge. The second High Court
Judge held that he could entertain the application and granted the respondent
leave to proceed with the counter-claim against the appellant to stay this
order by the appellant. Attempts by the appellants to stay his order were
unsuccessful. The appellant appealed to the Supreme Court against the
decision that the Second High Court Judge could entertain the application
and grant the respondent the leave he sought.
 327

Held:

1. The purpose of Section 317 of the Companies Act is to ensure that when
a
company goes into liquidation, the assets of the company are
administered in an orderly fashion for the benefit of all the creditors
should not be able to obtain an advantage by bringing proceedings
against the company. What is contemplated is that the High Court
shall be seized with all these matters and shall see that the affairs are
wound up in a dignified and orderly way.

2. An application for leave under Section 317 of the companies Act is not
intended to determine any issue between parties nor is it intended to
determine whether the person suing a company in liquidation has a
good case against the company. It is procedure designed to inform the
High Court that the company sued is in liquidation, so that when need
be the High Court can supervise the liquidation.

Case referred to:-

1. Langey Constructions (Brixham) Limited v Wells, Wells Estate (Dartford)

Limited v Wells 1969 2 ALL ER 46

Legislation referred to:

1. Companies Act Cap 388 of the Laws of Zambia Section 317

2. Companies Act 1948 Section 2312.

Work referred to

Rules of the Supreme Court (White Book) 1995 Edition Order 102(2) of the
Rules of the Supreme Court 1995.

S. Mambwe of Frazer Associates for the appellant.

N.B. Mutti of Lukona Chambers for the respondent.

Judgment

CHITENGI, JS, delivered the judgment of the court.

In this appeal we shall refer to the appellant as the plaintiff and the
Respondent as the defendant which is what they were in the Court below.

The facts giving rise to this appeal can be briefly stated. The defendant was
employed by the plaintiff as Deputy General Manager. On 24th November,
1997, the plaintiff terminated the defendant’s contract of employment. On
 328

24th June, 1998, the plaintiff, now in liquidation, commenced an action

against the defendant to recover some K72, 575,987.41, in respect of some
staff loans advanced to the defendant by the plaintiff while the defendant was
still in the plaintiff’s employment. By amendment to the statement of claim
on 24th May, 2000, the defendant’s indebtedness was reduced to K27,
004,445.34.

The defendant’s reaction to the plaintiff’s claim was to counter claim for
damages in respect of alleged wrongful dismissal and alleged libel.

As the plaintiff was in liquidation, the defendant required leave of the court to
proceed with the Counter Claim against the plaintiff. Without the enthusiasm
for quoting foreign authorities even when there is no default in our own laws,
the application for Leave to proceed with the Counter Claim would have been
brought under Section 317 of our Companies Act(1). Instead the application
was brought under Order 102(2) of the Rules of Supreme Court 1995
Edition(2).

At the hearing of the application an objection was raised against the

application on the ground that since Order 102(2) of the White Book 1995(2)
is based on the 1985 English Companies Act which is not applicable to
Zambia, the application was misconceived. The learned trial Judge
(Lengalenga J.) upheld the objection and dismissed the application.

It appears after the dismissal by Lengalenga J. The matter was transferred to

Phiri J. The defendant made a fresh application for leave to proceed against a
company in liquidation. The application this time was brought pursuant to
Section 317 of the Companies Act(1). Phiri J. holding that he could entertain
the application granted the defendant leave to proceed with the Counter Claim
against the Plaintiff. Attempts by the Plaintiff to stay this order were
unsuccessful.

The plaintiff now appeals to this court against the decision of the Court below
that it could entertain the application and grant the defendant the leave he
sought.

The plaintiff’s ground of appeal is that the learned trial Judge had no
jurisdiction to decide on a matter which another Judge had already ruled upon.

Both counsel filed heads of arguments on which they relied. Counsel also
addressed us orally.

The sum and substance of Mr. Mambwe’s submissions is simply that the
learned trial Judge erred in law and fact by granting the defendant leave to
proceed with the Counter Claim when another Judge of co-ordinate
jurisdiction had earlier refused the defendant leave to proceed with the
 329

Counter Claim. According to Mr. Mambwe the matter was already res
judicata.

Mrs. Mutti’s reply to these submissions was that the learned trial Judge was
on firm ground when he granted the defendant leave to proceed with the
Counter Claim against the plaintiff. It was Mrs. Mutti’s submission that the
application for leave was not on merit but merely procedural. The application
was defeated on wrong procedure and can be renewed before another court.
The judgment by Ms Justice Lengalenga was not on the merits, but on
procedure. The defendant conceded using wrong procedure and started
afresh.

We have considered the facts giving rise to this appeal and the submissions of
counsel. At the outset we are bound to say that this appeal is totally
unmeritorious. It seems to us that this appeal comes about because of
misconception about the purpose of getting leave of the High Courts under
Section 317 of the Companies Act, before commencing an action against a
company in liquidation or where the action was has already commenced
before proceeding with it further. The provisions of Section 317 of the
Companies Act, have their origin in Section 231 of the English Companies
Act of 1948, which Zambia adopted and enacted as its own and used before
the enactment of the present Companies Act in 1994.

There are many cases interpreting Section 231 of the English Companies Act
of 1948, but here we only refer to the case of Langey Constructions (Brixham)
Limited v Wells, Wells Estate (Dartford) Limited v Wells (4) where it was
stated that: -

“…. The purpose of Section 231 is to ensure that when a Company goes into
liquidation the assets of the company are administered in an orderly fashion
for the benefit of all the creditors and that particular creditors should not be
able to obtain an advantage by bringing proceedings against the company.
What is contemplated is that the Companies Court shall be seized with all
these matters and shall see that the affairs are wound up in a dignified and
orderly way.” Per Lord Widgery.

Of course related to our situation Section 231, should read Section 317 and
Companies Court, should read the High Court.

It can be seen that an application for leave under Section 317 of the
Companies Act, is not intended to determine any issue between parties; nor is
it intended to determine whether the person suing a Company in liquidation
has a good case against the company, as the defendant’s Affidavit in Support
of the application for Leave suggests. Rather, it is a procedure designed to
inform the High Court that the Company sued is in liquidation so that when
need be, the High Court can supervise the liquidation.
 330

Properly understood, an application under Section 317 of the Companies

Act(1) should, therefore, not be contentious. A company in liquidation which
is sued should not even think of opposing the application for leave under
Section 317 of the Companies Act, because it is a requirement of the law that
the High Court should be aware of such an action and it is in the interests of
the Company that its affairs are properly wound up.

Mr. Mambwe counsel for the appellant argued issues of res judicata before us.
We are of the firm view that even if we applied an elastic interpretation of the
concept of res judicata, it would not cover an application for leave under
Section 317 of the Companies Act,. As we have already said an application
under Section 317 of the Companies Act, does not determine any issue
between the parties.

We must, therefore, uphold Mrs. Mutti’s submissions that the concept of res
judicata is inapplicable in this case.

As Mrs. Mutti quite rightly submitted and argued the application was defeated
on procedural lapse and it was open to the Defendant to bring the application
under the correct section or order. In our view, having regard to the purpose
of Section 317 of the Companies Act, it was not even necessary for M/S
Justice Lengalenga to dismiss the earlier application for leave. The defendant
could have been asked to amend his summons to show that the application
was made under Section 317 of the Companies Act. There was no abuse of
court process as it was argued in the court below.

For these reasons we cannot fault the learned trial judge who granted the
defendant leave to proceed with his action against the plaintiff. In the result,
we dismiss this appeal with costs to the defendant to be taxed in default of
agreement.

Appeal dismissed
 331

CREDIT AFRICA BANK LIMITED (IN LIQUIDATION) v JOHN

DINGANI MUDENDA

Supreme Court
Sakala, CJ, Chibesakunda and Silomba, JJS
7th August, 2002 and 19th September, 2003
(SCZ Judgment No. 10 of 2003)

Flynote

Banker and Customer – Compound interest – Express agreement necessary.

Banker and Customer – Penal interest or charges – whether alloed.

Headnote

This is an appeal against the ruling of the learned Commissioner of the High
Court dated the 18th August, 1997, in which he declined to review his earlier
judgment of the 9th of April, 1997. In particular, the appellant is appealing
against that part of the riling in which the learned commissioner states:

“The above being the case, it cannot be said that the requirement for an
agreement to pay compound interest or acquirescene is bad law. The
defendant did not agree to pay compound interest and did not acquiesce to the
payment of the same. The question of compound interest does not arise.”

Held:

1. The Banking and Financial Services (Cost of Borrowing) Regulations

made pursuant to the Banking and Financial Services Act prohibit the
imposition of any charges or penalties on the borrower for late
repayments or payments made contrary to a contract governing a loan.

2. The charging of compound interest can only be sustained if there is

express agreement between the parties to the charging of compound
interest or if there is evidence of consent or acquiescence to the same.

3. A customer must be made aware of the intention of the Bank to charge

an unusual rate of interests such as compound interest.
 332

4. The rate of interest must move with times and must take into account
the prevailing commercial practices and therefore, the rate of interest
awarded by the court would normally be guided by the rate of interest
which a depositor is likely to earn had he placed it in an interest bearing
account of a reasonable nature.

Cases referred to:-

1. Union Bank Zambia Limited v Southern Province Cooperative Marketing

Union (1995-1997) ZR, 207.
2. Zambia State Insurance Corporation Limited v Serioes Farms Limited
(1987) ZR, 93.

Legislation referred to:

1. Judgments Act, Chapter 81, of the laws of Zambia, Section 2.

2. Law Reform (Miscellaneous Provisions) Act, Chapter 74, of the Laws of
Zambia, Section 4.
3. The Banking and Financial Services (Cost of Borrowing) Regulations
Statutory Instrument No. 129 of 1995

Works referred to:

1. Chitty on Contracts, Volume 2, 1994, Edition.
2. Rules of the Supreme Court (White Book) 1995 Edition Order 6/2/10
3. Halsbury’s Laws of England, 3rd Edition, Vol. 14, Para. 1177.

C. Hakasenke, Hakasenke and Company for the Appellant

N. Mutuna, of NKM Associates for the Respondent

Judgment

SILOMBA, JS, delivered the judgment of the Court.

This is an appeal against the ruling of the learned Commissioner of the High
Court dated the 18th of August, 1997, in which he declined to review his
earlier judgment of the 9th of April, 1997. In particular, the appellant is
appealing against that part of the ruling in which the learned Commissioner
states:-

“The above being the case, it cannot be said that the requirement for an
agreement to pay compound interest or acquiescence is bad law. The
defendant did not agree to pay compound interest and he did not acquiesce to
the payment of the same. The question of compound interest does not arise.”
 333

As far as we can ascertain, the facts giving rise to the present appeal are that
the respondent, through a legal mortgage dated the 12th of May, 1995,
obtained a loan in the sum of K10, 000,000 from the appellant. Subsequently,
the respondent failed in his obligation to service the mortgage, whereby the
appellant bank was compelled to take out the originating summons on the 8th
of January 1996, seeking orders for the payment of all monies owing under
the mortgage, interest and foreclosure.

Before the originating summons could be determined by the learned High

Court Commissioner, the parties entered into a consent order on the 28th of
March, 1996, on the terms put forward by the respondent in his letter at page
40 of the record of appeal. Following the consent order, the respondent made
two payments amounting to K15, 000,000, which were acknowledged by the
appellant. Apparently, no further payments were made and by the terms of
the consent order, the respondent filed a writ of Fieri Facias to levy the sum of
K29, 387,173.17 through the sell, at an auction, of the goods and chattels of
the respondent. With this development, the respondent applied, by way of
summons and affidavit in support, for leave to review the consent order under
Order 39 of the High Court Rules, alleging that at the time the consent order
was concluded, he was under the impression that interest was simple and not
compound. On review, the learned High Court Commissioner agreed with the
respondent and varied the consent order on the basis that the mortgage deed
was vague in its provision for the calculation of interest “in accordance with
bank practice.” Among other things, the consent order was varied to include
interest on the principal at bank rate per annum from 12th of May 1995, to the
28th of March 1996, the date of the consent order and thereafter at 6 percent
per annum. The appellant then applied for the review of the order to set aside
the consent order but the application was refused – hence this appeal.

There were three grounds of appeal which were presented by the appellant
bank. Besides, both the appellant and the respondent filed their respective
heads of argument upon which they relied. The first ground of appeal was
that the learned trial Commissioner erred in law and in fact in holding that the
requirement for agreement to pay compound interest or acquiescence is not
bad law. In his submission in support of the first ground Mr. Hakasenke,
Counsel for the appellant, told the Court that there was no submission in the
Court below by the appellant that the requirement for an agreement to pay
compound interest or acquiescence was bad law. He said that the basis for
raising the matter before us was to put the record straight, adding that it was
and still is the position of the appellant that compound interest is payable by
agreement, acquiescence or custom.

Mr. Mutuna, Counsel for the respondent, did not respond to this ground either
in his oral submission or in his heads of arguments. This is as it should be
because the appellant was simply trying to put the record straight. On our part
we have had occasion to peruse the record of appeal at pages 75 to 80, which
 334

constitute the appellant’s submission in support of the application for review

of the judgment of the 9th of April, 1997. At page 79 (third line from top), the
submission reads in part - “As such, even if actual acquiescence were to be
required, which is no longer good law …” The reference to acquiescence as
being no longer good law cannot be denied. What the Counsel for the
appellant should have disputed, if he had re-read his submission, is the
inclusion of or reference to ‘agreement’ as being bad law. To the extent that
the submission is categorical in conveying the wrong impression that
acquiescence is no longer good law, we do not think that the learned trial
Commissioner was wrong in re-stating the correct position of the law. He was
certainly on firm ground.

Having put the record straight we now move to the second ground of appeal,
which is, that the learned trial Commissioner erred in law and in fact in
holding that the respondent in this appeal did not agree to pay compound
interest. In support of this ground, Mr. Hakasenke stated that the requirement
to pay compound interest was provided for in the mortgage deed (now at
pages 17-25 of the record of appeal), entered into between the respondent and
the appellant and dated the 12th of May, 1995. He drew our attention to
Clause 1 of the mortgage deed under which the mortgagor (meaning the
respondent) covenanted with the mortgage (meaning the appellant) “to pay
and discharge on demand all monies and liabilities .… including charges of
interest at current rates … which interest shall be calculated in accordance
with bank practice with such commission …”

Mr. Hakasenke submitted that the calculation of compound interest on loans

was a very well known bank practice. He cited Chitty on Contracts (3), at
page 619, paragraph 36-227, in aid. He has also referred the Court to Order
6/2/10 (4) which provides under (e) as follows:-

“The practice whereby banks charge customers compound interest has

become recognized as a usage of bankers, and as such is implied into a
contract between the banker and customer …”

He, accordingly, submitted that when Clause 1 of the mortgage provided for
interest to be calculated in accordance with bank practice, the bank practice
was clearly one of compounding interest. He urged the Court to find that the
learned trial Commissioner’s holding to the contrary was a misdirection which
should be set aside and that in its place the Court should order that the bank
practice in this matter was to compound interest.

In addition, Mr. Hakasenke stated that apart from the usual bank practice of
calculating compound interest, the respondent had clearly acquiesced to the
payment of compound interest. He illustrated his point by referring the Court
to a letter dated 4th of March, 1996, found at page 40 of the record of appeal,
in which the respondent proposed to liquidate the amount of K20, 499,031.00
 335

through installments. According to Mr. Hakasenke, the K20, 499,031 was

lifted from the appellant’s statement of account and included compound
interest. At page 41 of the record of appeal is a response from the appellant
dated the 6th of March, 1996, in which the proposed mode of repayment of
the outstanding amount was accepted as proposed by the respondent. In the
same letter, the appellant cautioned the respondent that the outstanding
amount had risen to K28, 279,733.27, as at 3rd of March, 1996 Mr.
Hakasenke submitted that on the basis of the proposal to pay in installments, a
consent order was signed by the legal representatives of the parties.

Mr. Hakasenke observed that prior to the signing of the consent order and
while the respondent and the appellant exchanged letters, there was no protest
from the respondent on the charging of compound interest. The legal Counsel
contended that in fact it was the respondent himself who acknowledged that
K20, 499,031 was outstanding as at 4th of March, 1996, in his letter at page
40 of the record of appeal. This figure was later corrected to read K28,
279,733.27, as at 3rd of March, 1996, by the appellant without any single
protest from the respondent that the amount contained compound interest, he
said.

He pointed out that in fact the respondent paid the first instalment of K5,
000,000 following the signing of the consent order and thereafter failed to
honour the terms of the consent order. On the 14th of June, 1996, long after
the last date on which he had undertaken to pay off the whole debt, the
respondent issued a cheque for K10, 000,000 and appealed to the appellant to
restructure his accounts. Mr. Hakasenke stated that even at that late stage, the
respondent never raised any query on compound interest.

The respondent, however, sought to impeach the consent order on the basis
that the appellant was charging compound interest when the appellant issued a
writ of fifa, Counsel said. It has been argued by Mr. Hakasenke that had the
respondent not defaulted in his payments, he would have paid the whole
amount, including compound interest. He, accordingly, asked the court to
order the respondent to pay the sum due to the appellant, plus compound
interest thereon, as agreed in the mortgage deed or as acquiesced to by the
respondent by setting aside the learned trial Commissioner’s ruling on review.

In his counter - submission, Mr. Mutuna, Counsel for the respondent, told the
Court that the appellant was not entitled to charge compound interest in the
absence of an express agreement to do so or evidence of acquiescence by the
borrower to pay compound interest. He has cited the case of Union Bank
Zambia Limited v Southern Province Co-operative Marketing Union (1), as
his authority. In his elaboration, he stated that Clause 1 of the mortgage deed
at page 19 of the record of appeal, which had been relied upon by the
appellant, did not amount to an agreement binding upon the respondent (as
borrower) to pay compound interest. He stated that this Court had made it
 336

very clear in the Union Bank case (above), that the universal practice of
banking was to charge simple interest on loans but that when it came to an
unusual interest of compound interest there had to be an agreement.

On acquiescence, the respondents’ learned counsel submitted that there was

no evidence in support to prove that the respondent acquiesced in the payment
of compound interest. With regard to the statements of account at pages 57
and 58 of the record of appeal, to which the appellant’s learned counsel had
referred to earlier on, Mr. Mutuna said that the documents did not show that
compound interest was payable.

On penalties that were being imposed by the appellant as reflected in the

statements of accounts at pages 57 and 58 of the record of appeal, Mr.
Hakasenke conceded to Mr. Mutuna’s submission that the charges were an
unauthorized under the law. We have visited Regulation 10 (i) of the Banking
and Financial Services (Cost of Borrowing) Regulations made under the
authority of the Banking and Financial Services Act, Chapter 397 of the laws
and note, with satisfaction, that the said Regulation specifically outlaws the
imposition of any charges or penalties on the borrower for late repayments or
payments made contrary to a contract agreement governing the loan. With the
concession by Mr. Hakasenke, we do not intend to pursue this matter further;
we shall, therefore, order the appellant to knock out from the principal sum
any charges or penalties that have so far been levied and in the event of a
disagreement the matter shall be referred for assessment by the learned
Deputy Registrar.

On the charging of compound interest, we wish to reiterate our well known

stand that the basis for charging such interest can only be sustained if there is
express agreement between the parties to the charging of compound interest or
if there is evidence of consent or acquiescence to the same. In the case of
Union Bank Zambia Limited v Southern Province Co-operative Marketing
Union Limited (1), cited to us by the respondent’s learned Counsel, we stated
that “by the universal custom of bankers, a banker has the right to charge
simple interest at a reasonable rate on all overdrafts or loans. However, when
it comes to an unusual rate of interest - such as compound interest - express
agreement is required, or in the alternative evidence of consent or
acquiescence to such a practice or custom.”

Mr. Hakasenke has drawn our attention to Clause 1 of the mortgage deed as
quoted above arguing that it was bank practice to charge compound interest.
We do not agree with his stand on the matter for the simple reason that the
concept of bank practice is a peculiar concept to commercial banking; as such
members of the public wishing to borrow from banks are presumed not to
know what bank practice is in relation to the charging of compound interest.
 337

The learned trial Commissioner, commenting on Clause 1 of the mortgage

deed, said in his judgment at page 10 of the record of appeal:-

“This clause which is relied upon is vague because it does not state what this
bank practice is and there is no evidence to show that the defendant knew this
practice.”

We entirely agree with the learned trial Commissioner’s comments and we

would go further to caution commercial banks that if a customer wishes to
borrow from a bank, he must be made aware of the intention of the bank to
charge an unusual rate of interest, that is, compound interest. It must be the
inescapable duty of a bank to state that it wishes to charge compound interest
on the loan, obtain agreement of the customer to the charging of compound
interest and then proceed to make express provision for the charging of
compound interest in the mortgage deed or loan agreement.

We wish to comment further that the stand taken by the appellant, through its
counsel, is not supported even by Chitty on Contracts (3), cited to us by Mr.
Hakasenke. At page 619, paragraph 36-227, this is what the learned authors
of Chitty on Contracts have stated:-

“Compound interest is payable either by agreement or custom but not

otherwise.”

The learned authors then go on to explain how compound interest is calculated

by practice of bankers. The most important point to bear in mind is that the
principle in Chitty on Contracts is the same as that expounded in the Union
Bank case, that is, that “compound interest is payable either by agreement,
consent, acquiescence or custom. With regard to Order 6/2/10 (4), which
states that “the practice where banks charge customers compound interest has
become recognized as a usage of bankers, and as such is implied into a
contract between the banker and customer …” cannot, with due respect to
counsel, be the law in Zambia.

On the basis of our reasoning, as outlined above, we do not think that Clause 1
of the mortgage deed dated the 12th of May, 1995, amounted to an express
agreement under which the respondent can be said to have agreed to pay
compound interest.

Under the same ground two, we were treated to further arguments from
counsel for the appellant and the respondent on whether or not the respondent
acquiesced to the payment of compound interest. Having ruled that there was
no express agreement to pay compound interest, the argument of the appellant
that the respondent acquiesced to the compounding of interest, appears to us,
to be an argument in the alternative. In their submissions, no authorities were
 338

cited to us to explain the law on acquiescence but nonetheless we have duly

considered the arguments whereby we venture to make certain observations.

The term acquiescence is defined in Halsbury’s Laws of England, (5). The

learned authors assert that the term is used in two senses, thus:-

“In its proper legal sense it implies that a person abstains from interfering
while a violation of his legal rights is in progress; in another sense it implies
that he refrains from seeking redress when a violation of his rights, of which
he did not know at the time, is brought to his notice.”

Based on the facts of this case and the definition of acquiescence given to us
by the learned authors of Halsbury’s Laws, can we say that the respondent
was not interested in challenging the appellant when a violation of his legal
rights, as a mortgagor, was being perpetrated by the appellant? Would it be
correct to say that the respondent never took any action when a violation of
his legal rights was made known to him in the course of his relationship with
the appellant? The answers to both questions are in the negative for lack of
clear evidence to show that the respondent was aware of the illegal charging
of compound interest but did nothing to redress the situation.

To the contrary, the evidence is that, as soon as he became aware that the
appellant was charging compound interest, he moved the lower court under
Order 39 of the High Court Rules for leave to review the consent order of the
28th of March, 1996 and succeeded, inter alia, in having it varied to provide
for the charging of simple interest and the exclusion of penalties on late
payments of the loan. It is common cause that the respondent initially
borrowed K10, 000,000 for which a mortgage deed was entered into on the
12th of March, 1995. In a letter dated 4th of March, 1996, at page 40 of the
record of appeal, it is apparent to us that the initial K10, 000,000 had swelled
to K20, 499,031.00, which the respondent proposed to liquidate by 30th of
April, 1996. We shall assume that at that stage he was not aware that K20,
499,031.00, included compound interest.

After paying K15, 000,000, the respondent was served with a writ of fifa
dated the 12th of June, 1996, in which the appellant levied execution for the
sum of K29, 387,173.17, plus interest at 84 percent per annum. At this stage
he became aware that compound interest was being charged. According to the
affidavit in support of an application for review (see page 36 of the record)
and the submission of counsel, the respondent was convinced that the new
figure could only have come about through the charging of compound interest.
The learned trial Commissioner agreed with the respondent and on that basis
proceeded to vary the consent judgment.

We have been referred to the bank statements at pages 57 and 58 of the record
of appeal, which were sent to the respondent. The argument of the appellant
 339

is that upon receipt of the statements, the respondent never raised the issue of
compound interest. We have had occasion of examining the statements and
our view is that they do not contain information on compound interest,
descriptive enough to be easily understood by a layman, such as, the
respondent. We, therefore, agree with Mr. Mutuna that the bank statements
do not show that compound interest was payable. This court cannot, in the
circumstances, positively conclude that the respondent ought to have known
about the charging of compound interest, but took no measures to stop the
illegal practice. In all, we are saying that the respondent did not acquiesce in
or consent to the charging of compound interest and the net result is that the
second ground of appeal is unsuccessful.

We now move to deal with the third and last ground of appeal, which was not
argued in the oral submissions of counsel. It reads:-

“The learned trial Commissioner erred in law and in fact in holding that the
rest of judgment in this matter sought to be reviewed remain the same and
thus holding, inter alia, that interest after the consent judgment shall be 6
percent per annum.”

Mr Hakasenke reiterated, in his written submission, that the rate of interest

payable on the loan before and after judgment was expressly agreed upon by
the parties in Clause 1 of the mortgage deed. He has submitted that the
express agreement on interest payment was in conformity with the proviso to
Section 4 of the Law Reform (Miscellaneous Provisions) Act (7). In his view,
by ordering 6 percent per annum interest, the learned trial Commissioner did
not follow the agreement of the parties which was current both, before and
after judgment.

We have been referred to the case of Zambia State Insurance Corporation

Limited v Serioes Farms Limited (2), in which this court held that the rate of
interest must move with times and must take into account the prevailing
commercial practices and that, therefore, the interest awarded by the court
would normally be guided by the rate of interest which a depositor is likely to
earn had he placed it in an interest bearing account of a reasonable nature.
Admittedly, that has been our stand.

From the outset we wish to point out that the respondent’s Counsel did not
argue this ground in his heads of arguments. The point the appellant is making
is that, the interest that the learned trial commissioner ordered to apply to the
mortgage sum before and after the consent judgment was not only unrealistic,
but contrary to the agreement as specified in Clause 1 of the mortgage deed of
the 12th of May, 1995. We have had occasion to look at the consent order of
the 28th of March, 1996, and note that the order does not specify the rate of
interest to govern the loan, let alone, the loan that remained outstanding after
the consent order. However, when the consent order was reviewed this is
 340

what the learned trial commissioner ordered in relation to interest in his

judgment of the 9th of April, 1997:-

“Judgment is entered for the plaintiff for the principal plus interest at bank
rate per annum from 12th of May, 1995, to the 28th of March, 1996, the date
of the consent judgment, thereafter 6 percent per annum.”

In keeping with the contents of Clause 1 of the mortgage deed, the appellant
has urged the court to ignore the 6 percent imposed by the learned trial
commissioner and instead order that the current rates applicable before the
consent order shall continue to apply to the amount outstanding after the
consent order. While we agree that interest rates must be realistic enough to
take into account the prevailing commercial practices, we refuse to accede to
the request that the current rates before the consent order was signed must
continue to apply even after the consent order in respect of the outstanding
amount. We have already said that the charging of compound interest under
the guise of Clause 1 of the mortgage, before the consent order was illegal. It
follows that this rate of interest cannot be allowed after the consent order.

We are familiar with the fact that the amendment to the Judgment Act (6) was
effected by Parliament in 1997. In the amendment to Section 2 of the Act,
Parliament removed the provision relating to interest at the rate of 6 percent
per annum after judgment or order. In its place, Parliament empowered courts
to determine interest, which in any case should never exceed the current
lending rate determined by the Bank of Zambia. Having due regard to the fact
that the consent order was entered into on the 24th of March, 1996, well
before the amendment to the Judgment Act, we have no cause for interfering
with the order of the learned trial commissioner as outlined above.
On the basis of our reasoning, ground three is also unsuccessful. In the whole,
the appeal is dismissed with costs to be taxed in default of agreement.

Appeal dismissed
 341

LEOPOLD WALFORD (Z) LIMITED v UNIFREIGHT (1985) Z.R. 203

(S.C.)

SUPREME COURT
SILUNGWE, C.J., NGULUBE, D.C.J., AND MOWO, J.S.
25TH SEPTEMBER, 1985
(S.C.Z. JUDGMENT NO. 23 OF 1985)

Flynote

Civil Procedure - Writ - Plaintiff 's address - Necessity for - High Court Rules
O. VII r. (1)(a) and O.X. r.16 - Effect of non - compliance with the rules.
Civil Procedure - Writ - service abroad - Leave to issue for - Steps to be
followed.

Headnote

The plaintiff issued a writ for service outside the jurisdiction. The advocates
for the plaintiff did not endorse on the writ the plaintiff's address as required
by O.VII r. (1) (a); neither was leave of the court obtained under O.X. r. 16.
The District Registrar struck out the writ. On appeal to the Supreme Court,
the issues were whether the plaintiff's address was also required to be
endorsed in addition to the advocate's address and whether leave to issue a
writ for service out of the jurisdiction had to be obtained before or after such
writ had been issued. The question arose whether a failure to comply with the
rules was fatal or not.

Held:

(i) It is necessary for the plaintiff's address, as well as that of his

advocate, to be endorsed on the writ;

(ii) As a general rule, breach of regulatory rule is curable and not

fatal, depending upon the nature of the breach and the stage
reached in the proceedings;

(iii) Before a writ can be issued out of the jurisdiction, leave of the
court must be obtained;
 342

(iv) The steps to be taken before a writ can be issued out of the
jurisdiction are:first the writ should be prepared, second an
application to issue the writ out of the jurisdiction must be made to
the court; with the writ attached the application. Only after the
court's leave has been obtained shown the writ be issued.

Legislation refered to:

High Court Rules of Zambia. Cap. 50, O.VII r. (1)(a.) and O.X. r.16.

For the appellant: N. Kawanambulu, of Shamwana and Company.

For the respondent: M. Lwatula, of Ellis and Company. 10
__________________________________________
Judgment

SILUNGWE, C.J.: delivered the judgment of the court.

In this case, there are two issues raised, namely, non-compliance with Order
VII, rule (1) (a) and Order X, rule 16 of the High Court Rules, Cap.50
(hereinafter referred to as O.VII,r.1, etc.).

The case first came before the District Registrar of the High Court and it was
there argued that the writ issued by the plaintiff (now the appellant) was not in
conformity with O.VII, r.1 in that the plaintiff's address was not endorsed
thereon.

Mr Kawanambulu's argument, on behalf of the plaintiff, was that, where a

plaintiff represented by an advocate, it is unnecessary for the plaintiff's
address to be endorsed on the writ, on the ground that the address required for
purposes of service and that it is, therefore, enough to give the address of the
plaintiff's advocate.

The District Registrar ruled against the plaintiff and ordered that the writ be
struck out for non-compliance with O.VII, r. (1)(a). There was an appeal
against that order before a judge in chambers but the appeal was dismissed.
The matter is now before us and the question us whether the District
Registrar's ruling order can stand.

In our view O.VII r.1 is clear in its terms and requires, not only that the
address of the plaintiff 's advocate shall be endorsed on the writ, but also that
the address of the plaintiff shall similarly be endorsed thereon. The relevant
part of the Order reads as follows:

"1. (1) The solicitor of the plaintiff suing by solicitor shall endorse upon
the writ of summons-
(a) The address of the plaintiff;
 343

(b) His own name or firm and his own place of business and the
postal address thereof';

p205

As can be seen from what has been set out above, it is necessary for the
plaintiff's address, as well as that of his advocate, to be endorsed on the writ.

There has been an alternative argument put forward by Mr Kawanambulu,

namely, that non-compliance with O.VII, r. (1) (a) is not fatal because the rule
is merely regulatory or directory. In accepting this argument, we wish to add
that, where there has been a breach of a regulatory rule, such breach will not
always be fatal as much will depend upon the nature of the breach and the
stage of the proceedings reached. This, therefore, means that, as a general
rule, breach of a regulatory rule is curable.

The second issue is as to the construction and effect of O.X, r.16. In part, this
rule reads as follows:

"16. An application for leave to issue for service out of the jurisdiction a
writ of summons, originating summons, or originating notice of motion or a
concurrent writ of summons, originating summons or originating notice of
motion may be made ex parte to the Court or a judge on deposit of the writ,
summons or notice with the Registrar together with an affidavit in support of
such application. ''

The rule then goes on to set out certain conditions that must be observed but
with which we are not here concerned. This rule has the same effect as 0.6, r.7
of the Supreme Court Rules of England, the relevant part of which reads as
follows:

"7 (1) No writ which, or notice of which, is to be served out of the

jurisdiction shall be issued without the leave of the Court.''

The questions is whether leave of the High Court is required to issue a writ,
etcetera, before or after the writ has been issued. The rule as set out above is
quite explicit and the procedure to be followed is that, before a writ can be
issued, leave of the court must be obtained. The procedural steps to be taken,
therefore, are that a writ must be prepared but that before it can be issued, an
application must be made, with the writ attached thereto, for leave to issue the
writ for service out of the court's jurisdiction; but, even then, only after the
court's leave has been obtained shall the writ be issued.

In this case, there was no compliance with r.16 or O.X. since the writ was
issued before the court's leave could be obtained. However, as we have said in
relation to breach of (1)(a) of O.VII, contravention of that rule was not fatal
 344

but curable. Moreover, an application was made by the plaintiff's advocate for
the amendment of the writ so as to have the plaintiff's address reflected
thereon. There is, however,nothing on record to show that the application was
considered.

For the reasons given above, the appeal is allowed and the District Registrar's
order striking out the writ is set aside. We direct the amendment of the writ by
the endorsement thereon of the plaintiff's address. Thereafter, the court's leave
must be sought and obtained for the issue of the amended writ and the service
thereof outside the court's jurisdiction. In the circumstances of this appeal, we
propose to make no order as to costs.

Appeal allowed
 345

BYRNE v KANWEKA (1967) Z.R. 82 (C.A.)

COURT OF APPEAL
BLAGDEN CJ, DOYLE JA AND EVANS J
14TH JUNE, 1967

Flynote and Headnote

[1] Civil procedure - Pleading - Amendment - Power of High Court to

amend pleadings under High Court Rule 16.

The High Court's power to amend pleadings of its own motion is generally
discretionary but becomes obligatory where amendment is necessary to
ensure a fair trial or to identify the real question in controversy between the
parties.

[2] Civil procedure - Pleading - Amendment - Duty of High Court to

amend pleadings under High Court Rule 16.

The High Court is not bound to amend pleadings of its own motion simply
because the evidence at the hearing shows that the parties might have
pleaded other issues.

Rule construed:
High Court Rules, O. 16, r. 1.

Case cited:
[1] Puzey & Diss (N.R) Ltd v Mortimer (unreported Civil Appeal No. 109 of
1964).

p83

For the appellant: A O R Mitchley.

For the respondent: Lee, Senior State Advocate.
____________________________________
Judgment
 346

BLAGDEN, CJ.: On the 22nd May, 1964, the appellant, who was a road
traffic inspector then employed by the Northern Rhodesia Government, was
involved in a motor accident as a result of which he sustained, inter alia, a
fracture-dislocation of the right ankle. After immediate treatment at Kechirira
Leprosarium in Malawi the appellant was the same day moved to the
Government hospital at Fort Jameson, where he was attended to by the
respondent, a registered medical practitioner, also then employed by the
Northern Rhodesia Government.

The following day an X-ray examination of the joint revealed that the
reduction of the fracture was satisfactory. On the 28th May, 1964, the
respondent removed the plaster from the appellant's right leg and had it
replaced. After about three weeks the appellant left the hospital. About a week
later the respondent fitted him with a walking plaster and not long after that
the appellant went to Europe for a holiday.

In August, 1964, the Government surgical specialist in Lusaka, a Mr

MacPherson, had X-rays taken of the appellant's right leg and these disclosed
a dislocation of the injured ankle with considerable displacement. To remedy
this situation, and to ensure that there should be no painful movement and no
arthritis, Mr MacPherson performed an arthodesis operation on the ankle joint.
The effect of this operation is to fix the joint. Some movement, however, is
left in the foot through the agency of other joints.

The appellant brought an action for damages against the respondent, claiming
that as a result of the respondent's negligence in treating the appellant's ankle
injury he had sustained further injury and suffered loss. Judgment was given
for the respondent and it is against this judgment that the appellant now
appeals.

By his statement of claim the appellant claimed that the respondent was
negligent in four ways, but at the trial one of these four allegations was not
pursued, so that, for the purpose of this appeal, there is no need to refer to it.
The three ways in which the respondent was alleged to have been negligent
were expressed as follows:

"The defendant was negligent in that he:

(a) Removed the first plaster cast which had been applied to the
plaintiff's right leg in a rough, inexperienced and dangerous manner when he
well knew or ought to have known that further injury might be thereby
occasioned to the plaintiff's badly injured leg and ankle.
(b) Ignored the immediate complaint made to him by the plaintiff of
intense pain during the removal of the plaster referred to in the last foregoing
sub-paragraph hereof and failed to make any or any adequate examination for
possible further injury and/or dislocation.
 347

p84

(c) Refused the plaintiff's direct request for an X-ray examination of

the plaintiff's said right ankle before applying a new plaster which he well
knew or ought to have known would aggravate beyond repair any dislocation
of the ankle joint."

By has defence the respondent denied negligence and asserted that if the
appellant had suffered any extra injury it was as a result of his own negligence
in various ways.

The learned trial judge found that none of the averments of negligence
advanced by the appellant had been made out and he also found that the
respondent's counter-charges of contributory negligence against the appellant
had not been made out either.

In his judgment the learned trial judge also canvassed the possibility that the
respondent had been negligent in his treatment of the appellant's injury, but in
a manner which had not been specifically pleaded. He said:

"I shall now consider the possibility that the plaintiff's existing disability is
due to negligence that was not pleaded, namely, that the defendant was
negligent in not carrying out X-ray examinations at intervals until the fracture
was completely healed."

The learned trial judge made no actual finding on this issue. What he did was
to consider and determine whether or not; he should amend the appellant's
Statement of Claim so as to include this particular head of negligence. He
invited argument on this question.

Mr. Cunningham, who appeared for the appellant in the court below, did not
ask for any amendment to be made. He claimed that this particular issue of
negligence - namely, whether the respondent was negligent in not carrying out
subsequent X-ray examinations - was already included in sub-paragraph (b) of
the appellant's particulars of negligence.

He submitted further that if the real issues were not properly expressed in the
pleadings the court had the right to amend them, and that as a result of the
provisions of the High Court Rules, Order 16, rule 1, and their interpretation
in Puzey & Diss (N.R) Ltd v Mortimer [1], the court must amend the
pleadings in order to settle the real issues between the parties.

Mr Hamilton, appearing for the respondent below, opposed any amendment

by the court and submitted that the question of whether subsequent X-ray
 348

examinations was required or not was never a real question of controversy

between the parties.

The learned trial judge ruled against Mr Cunningham's submission that this
question was already covered by the particulars of negligence pleaded.

In regard to amendment the learned trial judge said:

"The real question in controversy between the parties at the trial was
whether the defendant had dislocated the plaintiff's ankle by

p85

removing the plaster in the manner he did and whether he ought to have
discovered the dislocation by an X-ray at the time.
It was not a real question in controversy whether the defendant had been
negligent in not taking successive X-rays: This was not pleaded in the
Statement of Claim, it came out in the evidence only because Mr. MacPherson
and Mr. McNab said it was their practice to re - X-ray this type of fracture.
Defence counsel did not deal with it in his concluding address, and in his
address the plaintiff's counsel did not refer to the practice except by
implication ....".

He went on to indicate that the trial might have taken a different course if this
allegation of negligence had been specially pleaded - in particular as regards
the conduct of the defence - and held that he should not make an amendment
to the Statement of Claim.

By this appeal the appellant attacks the learned trial judge's handling of, and
findings on the issues of negligence, and his assessment of damages.

In regard to the question of negligence the appeal has been argued broadly
under two main heads: first, that on the evidence adduced the learned trial
judge ought to have found negligence proved against the respondent;
secondly, that having regard to the evidence adduced and the course the trial
took, the learned trial judge ought to have exercised his powers of amendment
under the High Court Rules, Order 16, rule 1, and amended the particulars of
negligence in the appellant's Statement of Claim so as to include averments of
negligence which had been disclosed by the evidence adduced during the trial,
although these were not specifically pleaded.

To supplement this second main head of argument, Mr. Mitchley, for the
appellant, has also made application to us for the particulars of negligence
pleaded in the appellant's Statement of Claim to be amended so as to include
two new averments of negligence against the respondent.
 349

I have already referred in detail to the three items of negligence pleaded and
pursued by the appellant at the trial and to the fact that the learned trial judge
found none of them proved. He gave reasons for his conclusions and on the
evidence as recorded I think his findings are unimpeachable. But, it is argued,
the evidence disclosed two other grounds of negligence by the respondent,
namely, negligence in not malting subsequent and successive X-ray
examinations, and negligence in fitting a walking plaster too soon. The first of
these two grounds, it is also argued, is covered by the existing pleadings - in
particular by sub-paragraph (b) of the particulars of negligence. That
submission, as I have already related, failed in the court below.

To repeat sub-paragraph (b) of the appellant's particulars of negligence, this

alleged that the respondent -

"(b) Ignored the immediate complaint made to him by the plaintiff of

intense pain during the removal of the plaster referred

p86

to in the last foregoing sub-paragraph hereof and failed to make any or any
adequate examination for possible further injury andor dislocation."

The learned trial judge examined the evidence on this issue, found that the
appellant may have made some remark indicating pain when the plaster was
removed but concluded it was of no particular significance. He said:

"With regard to the second averment, I have already found that the
plaintiff did not make a complaint of intense pain during the removal of the
plaster though he may have complained generally. Mr. MacPherson said that
he would not pay much attention to complaints of pain, but would X-ray in
any event after renewing a plaster.

Mr. McNab said he would not X-ray if there were no complaints of pain.
There was no X-ray taken at the time of the application of the plaster, and Mr.
McNab's evidence showed that there is not a normal practice to so X-ray. The
defendant's failure to X-ray at that time is therefore a course which a
professional man of ordinary skill would have followed.

I therefore find that the plaintiff has not proved his second averment."

Later in his judgment he dealt with Mr Cunningham's submission that the

particulars of negligence pleaded in sub-paragraph (b) included negligence by
the respondent in not carrying out successive X-ray examinations. The learned
trial judge said:
 350

"Mr. Cunningham . . . claimed that the allegation in paragraph 3 (b) of the

Statement of Claim that the defendant 'failed to make any or any adequate
examination for possible further injury and/or dislocation' included the
carrying out of X-ray examinations at intervals. I do not accept this, and I
have already dealt with it in this Judgment. The context restricts the time of
the examination referred to in paragraph 3 (b) to when the plaster was
removed."

I would agree with this conclusion and I would note also, in passing, that the
learned trial judge, in dealing with the particulars of negligence pleaded in
sub-paragraph (c), found that the appellant did not give a direct request for an
X-ray - a finding which in my view was supported by the evidence. It follows
that, in my view, the argument that on the evidence the learned trial judge
should have found the respondent guilty of negligence as pleaded, fails.

[1] [2] There remain the questions as to whether the pleadings should have
been amended by the learned tried judge at the trial or should now be
amended by us upon the appellant's application therefore so as to include
items of negligence not specifically pleaded. Amendment of pleadings is
regulated by the High Court Rules, Order 16, rule l, which provides that:

"The Court or a Judge may, at any stage of the proceedings, order any
proceedings to be amended, whether the defect or error be that of the party
applying to amend or not; and all such amendments

p87

as may be necessary or proper for the purpose of eliminating all statements

which may tend to prejudice, embarrass or delay the fair trial of the suit, and
for the purpose of determining, in the existing suit, the real question or
questions in controversy between the parties, shall be so made. Every such
order shall be made upon such terms as to costs or otherwise as shall seem
just."

The interpretation of this rule was considered by the Court in the case of
Puzey & Diss Motors (N.R) Ltd v Mortimer [1]. I do not think there is any
need for me to go into the facts of that case. It was a case in which the learned
trial judge did amend the pleadings under the powers conferred on him by
Order 16, rule 1.

As Conroy, CJ, put it:

". . . the learned trial judge was striving to do justice between the parties
and to determine the real questions in controversy between them. He was not
helped in this task by the pleadings. It was in his discretion as to whether he
 351

should amend the pleadings, as he did, and I cannot say that he exercised that
discretion incorrectly.

Paragraph 9 of the Statement of Claim makes a double claim - special

damages for innocent misrepresentation and general damages for breach of
contract. As the former were irrecoverable as pleaded and as the plaintiff had
fought his whole case on breach of contract, the learned trial judge was really
bringing the pleadings into line with the actual issues contested and decided,
and was, as he said, amending for the purpose of 'clearing the record'. He was
basing both claims on breach of contract. It is the duty of a court to ensure that
its records are complete. If a case is decided on a re-casting of the issues as
originally pleaded, the pleadings should be amended in fact...."

In the course of my judgment in that case I referred to the fact that the
amendments made by the learned trial judge introduced no new matter and no
new cause of action. I continued:

"All they did was to adjust the pleadings so that they conformed with the
case which had been presented and contested before him. In my view he was
not only justified in doing so, but in view of the mandatory terms of the last
part of Order XVI rule 1 of the High Court Rules, obliged to take this course."

Earlier I had referred to the Court's power to amend and stated that:

"The Court can and indeed must amend of its own motion, when the
requisite conditions obtain."

I adhere to these observations. Primarily, the court's power to amend of its

own motion is discretionary. But it becomes obligatory, and understandably
so, where amendment is necessary to ensure a fair trial or to identify the real
question or questions in controversy between the parties.

Normally the questions in controversy between the parties are those

specifically raised in the pleadings and no others. But I apprehend that

p88

there might be a defect or deficiency in the pleadings which, if not corrected,

might impede the resolution of the real question or questions in controversy
between the parties; or, again, as the case proceeds, it might become apparent
that the real issues which it involved had not been raised in the pleadings. This
last was what happened in the Puzey & Diss case. The pleadings were badly
drawn and the case as conducted disclosed that the real issue between the
parties was one which had not been pleaded.
 352

In either of the examples which I have cited I think amendment of the

pleadings would be essential. But the instant case does not fit into either
category. I entirely agree with Mr Loe's submission that the appellant's
complaint as disclosed in his Statement of Claim was in regard to negligence
by the respondent on the day the original plaster was removed and replaced
and no later. It is true that by his defence the respondent alleged contributory
negligence by the appellant on occasions subsequent to that day, but this made
no difference to the scope of the appellant's complaint. It is true, also, that
evidence was received from the two surgeons who were called relating to the
advisability of taking subsequent X-rays, and that there was also evidence,
most of it from the respondent himself, regarding the fitting of the walking
plaster and the reasons therefore. The emergence of this evidence, however,
did not automatically create new questions in controversy between the parties
and it would be n absurd construction of the provisions of the High Court
Rules, Order 16, rule 1, which would do violence to the whole concept of
pleadings to say that the court was bound of its own motion to amend the
pleadings simply because it had transpired from evidence adduced in the
course of the hearing that the parties night have pleaded other issues.
Fundamentally, of course, parties are bound by their pleadings and evidence
outside the pleadings would ordinarily be excluded as inadmissible.

It is, naturally, always open to a party to apply for leave to amend his
pleadings and he will be granted leave to do so in a proper case. I do not think
it is necessary for me to repeat here the principles under which the Court will
entertain such an application. They are well summarised in paragraphs 205-86
of the Notes to the Rules of the Supreme Court, Order 20, rules 5-8, under the
rubric "General Principles for Grant of Leave to Amend" on page 300 of the
1967 Supreme Court Practice.

But in the instant case the appellant's counsel below made no application to
amend, although given every opportunity to do so. I would not say he was
necessarily wrong in taking that attitude.

For the reasons I have given I am satisfied the learned trial judge was under
no obligation to make any amendment to the appellant's Statement of Claim.

There remains Mr Mitchley's application to amend the appellant's particulars

or negligence by the addition of the two further particulars of negligence. I do
not think that should be granted for several reasons: first, because if there was
any real substance in these allegations - and the appellant's counsel below was
in a position to know this - they could and

p89

should have been pleaded originally; secondly, because even if their

significance - for what it was worth - was not apparent before trial it certainly
 353

became apparent during the trial and the application should haste been made
then; thirdly, because as these new issues were neither pleaded nor properly
canvassed in the court below, the respondent would also have to be allowed to
amend his pleadings and further evidence would have to be called, all of
which could not really be satisfactorily achieved without ordering a new trial;
fourthly, because I think that to grant such an application, with all its attendant
complications and delays, at this late stage in the history of the matter, would
do an injustice to the respondent for which he could not be adequately
compensated in costs.

Having come to these conclusions there is no need for me to consider the

question of damages. I would dismiss this appeal.
 354

WILLIAM DAVID CERLISLE WISE v ATTORNEY-GENERAL (1990

- 1992) Z.R. 124 (H.C.)

HIGH COURT
B.M. BWALYA, J.
16TH DECEMBER,1991
(HP/668 OF 1989)

Flynote

Land - Compulsory land acquisition - purpose for acquisition must be

public one - Issue of public use judicial one - Depends on facts of each
case.

Headnote

The silence of the Land Acquisition Act cap 296 on the question of the
purpose or purposes for which the State may compulsorily acquire property
upon payment of compensation does not per se give the State a blanket right
to compulsory acquisition without any cause or purpose. Furthermore, the
purpose for compulsory acquisition of property upon payment of
compensation must be a public one. What constitutes public use frequently
and largely depends upon the facts surrounding the subject. The issue of
public use is a judicial question and one of law to be determined on the facts
and circumstances of each particular case.

Cases referred to:

(1) Clark v Nash 148 US 361; 25 S. Ct., 676; 49 L. ed. 1085.
(2) Mills v St Clair County 8 How 569; 12L. ed. 1201.

Legislation referred to:

1. Land Acquisition Act, Cap. 296, ss. 5, 6 and 17.

Other works referred to:

(1) Halsbury's Laws of England 4th ed. vol 8 para. 50.
 355

(2) de Smith's Judicial Review of Adminstrative Action, 4th ed., pages 335 et
seq.

For the plaintiff: A. M. Hamic of Messrs Solly Patel, Hamir and

Lawrence.
For the defendant: J. Mwanachnage, Principal State Advocate.

Judgment

B.M. BWALYA, J.:

This is the plaintiff's claim by way of writ of summons whose details in the
statement of claim are as follows:

1. By a will dated 18th January, 1979 the late Eric Falkenburg Hervey (''the
deceased'') bequeathed to his nephew the plaintiff his leasehold properties
being the remaining extent of Farm No. 134a Mazabuka and Subdivision No.
1 of Farm 136a (''the farm'').
2. The deceased died on 10th May, 1980 and on 27th November, 1981 the
executors of the deceased assented to the bequest of the farm in favour of the
plaintiff who thereby became tenant thereof from the President for a term of
100 years from 1st July, 1975.
3. That E. F. Hervey Limited was at the date of deceased's death in
occupation and working on the said farms for its use and benefit and continues
in such occupation up to the date hereof.
4. By an agreement made in writing the plaintiff granted E. F. Hervey a lease
of the said farms excluding the main residence thereon for a term of 12
months from 1st September, 1982 at a rent of K2 500.00 per month payable
monthly in advance and the said E. F. Hervey Limited undertaking to vacate
the farms on 31st August, 1983.

p125

5. That E. F. Hervey Limited agreed thereto and continued in possession

thereof but notwithstanding the plaintiff's written notice to them on about 20th
June, 1983 they held over the farms and kept the plaintiff out of possession
thereof from and after 31st August, 1983 and in addition thereto failed and/or
neglected to pay the agreed rate of K2 500.00 per month for the period of 1st
May, 1983 to 31st August, 1983.
6. That the plaintiff commenced legal proceedings against E. F. Hervey
Limited on 22nd September, 1983 for inter alia possession of the said farms,
arrears of rental and mesne profits.
7. That on 18th November, 1987 the High Court for Zambia adjudged that
the plaintiff is the owner of the said farms entitled to possession thereof of and
mesne profits from 1st September, 1983 to date of judgment.
 356

8. That E. F. Hervey Limited appealed the decision of the High Court to the
Supreme Court on 18th December, 1987. It secured a stay of execution of the
order for possession for six months and a further four months thereafter.
9. On 24th November, 1988 the Honourable Mr Justice M. S. Ngulube,
Deputy Chief Justice in Chambers, found no basis to stay execution on the
award for possession of the farms as the two previous stays of execution were
for the purpose of E. F. Hervey Limited harvesting and removing themselves
and it would be totally in equitable to allow them to plant new crops and so
again stretch their claim for further relief against the lower court's judgment in
that respect.
10. That about the week following the said decision of the Deputy Chief
Justice the then Right Honourable Prime Minister E Kebby Mosokotwane,
M.C.C., MP, called the plaintiff to his offices and infomed him one Raymond
Barrett of E.F.Hervey Limited had made representations to him and the
plaintiff should permit him or his company to continue farming on the
plaintiff's farms.
11. The plaintiff declined to agree to the request and placed his reliance on the
decision of the Court as aforementioned.
12. Therefore the Honourable Minister of Water, Lands and Natural Resourses
Mr P. Malukutila, M.C.C., MP, requested the plaintiff's attendance at a
meeting at his Chambers. The plaintiff attended the offices at which time he
also found present there the said Raymond Barrett, one Patrick Katyoka and
the Member of Parliament where the farms are located also there to attend the
same meeting. The Minister was not present and the meeting was aborted.
13. That E. F. Hervey Limited moved the Full Bench of the Supreme Court to
set aside the decision of the Honourable Mr M.S. Ngulube, Deputy Chief
Justice and the Full Bench of the Supreme Court presided by the Honourable
the Chief Justice, Annel Musenge Silungwe dismissed its motion on 27th
December, 1988.
14. On 27th December, 1988 E.F. Hervey Limited withdrew the substantive
appeal but did not serve notification thereof on the I plaintiff until after 13th
January, 1989.
15. On 9th January, 1989 the Sheriff of Zambia and his bailiff sought to
enforce a writ of possession issued by the High Court for Zambia and on the
same day immigration officers showed a deportation order purported

p126

to have been signed by the Honourable Minister of State for Home Affairs
who had earlier visited the said farms.
16. The plaintiff was immediately detained in prison pending deportation. On
13th January, 1989 he was served with two notices of intention to acquire
property and to yield up possession in respect of the farms pursuant to ss. 5
and 6 of the Lands Acquisition Act 1970. Copies of the said notices were
purported to be served on Raymond Hervey Barrett. The plaintiff and
 357

Raymond Hervey Barret were required to yield up possesion of the farms on

or before 12th March, 1989.
17. That E. F. Hervey Limited and Raymond Barrett had continued to be in
possession and occupation of the said farms notwithstanding the judgment of
the High Court, the orders of the Supreme Court and the writ of possession
issued by the High Court and executed by the bailiff.
18. That the defendant has dispossessed the plaintiff of the said farms and
purported to acquire the said farms from him and give the said farms to E. F.
Hervey Limited. The plaintiff avers that the defendant's actions undermine
and render the adjudicating authority vested in the continuationally
established judiciary nugatory.
19. The plaintiff further avers that the defendant's actions in compulsory
acquiring the plaintiff's said farms and giving it to E. F. Hervey Limited and
or Raymond Barrett a private individual and institution whatever the terms of
tenure is not and cannot constitute an acqusition in the national interest as
envisaged in the Constitution and the Compulsory Acquisition Act and is
wholly in breach thereof.

The plaintiff claims:

(i) (a) An order and or decalaration that the notices of intention to acquire
property and to yield up possession dated 13th January, 1989 served on
plaintiff's representative whereby the defendant purported to compulsory
acquire the plaintiff's two farms pursuant to s. 5 and 6 of the Land Acquisition
Act 1970, namely the remaining extent of farm 134a 'Springs' and Subdivision
1 of Farm 136a, both at Mazabuka, Southern Province of Zambia, is wrongful,
irregular and unlawful and of no legal effect whatsoever.
(b) The compulsory acquisition of the said two farms pursuant to s. 5 and
6 of the
Land Acquisition Act 1970 is wrongful, irregular and unlawful.
(ii) An order or declaration that the plaintiff is the owner of the said two
farms.
(iii) An award of damages for wrongful compulsory acqusistion of the
said farms.
(iv)Further and other relief.

The statment of defence is as follows:

1. Paragraphs 2 and 3 within the personal knowledge of the plaintiff.

2. The defendant puts the plaintiff to strict proof of the matters raised in
paras. 4 and 5 of the statment of claim.
3. Paragraphs 6, 7, 8 and 9 are within the personal knowledge of the plaintiff.
4. The defendant puts the plaintiff to strict proof of the matters raised in
paras. 10, 11 and 12 of the statment of claim.

p127
 358

5. Paragraphs 13 and 14 are within the personal knowledge of the plaintiff.

6. The defendant admits that the plaintiff was declared a prohibited
immigrant, and was detained pending deportation. The defendant further
admits that the plaintiff was served with notice to yield up possession.
7. The defendant denies para. 7 of the statement of claim.
8. The defendant denies that the farms were compulsorily acquired for the
purpose of giving them to E. F. Hervey Limited, but argues that the same were
acquired in the interest of the Republic, and had nothing to do with court cases
between the plaintiff and Hevey Limited and Raymond Barrett.

9 (a) The notices of intention to acquire property are legal, proper and
made in good faith, and therefore valid.
(b) The compulsory acquisition of the said two farms is neither
wrongful, irregular nor unlawful, and therefore the land is now properly
vested in the President.

10. As for damages, since compensation is being worked out under the Lands
Acquisistion Act, no damages can be awarded by the Court. The proper course
of action to take if dissatisfied with the amount for compensation that will be
paid will be to appeal to Parliament.

The plaintiff did not give evidence because he was detained and then deported
but called two witnesses. The defendant was represented and in attendance but
called no witnesses.

The facts emanating from the evidence, documents and pleadings before this
Court are as follows:

1. The plaintiff came to Zambia in 1952 and, in return for devoting his life in
assisting his uncle Eric Hervey on his farms in Zambia, he was to inherit the
said two farms and in May, 1980, upon the death of his said uncle, he did
inherit the two farms which are now the subject matter of this action.
2. The plaintiff permitted the widow, after the death of her husband, to
continue farming in the name of the company E. F. Hervey Limited free of
charge until September, 1982, when he granted the widow's company a lease
for a period of 12 months.
3. The company, now owned by Raymond Barrett and his wife Lynn, refused
to give up possession and succeeded in protracting the dispute in court until
November ,1987 when the High Court adjudicated thereon and held in favour
of the plaintiff. The company secured two temporary stays of execution of the
judgment pending its appeal against the judgment of the High Court to the
Supreme Court.
4. The Supreme Court, however, on two occasions, the first in Novmber,
1988 and again in late December 1988, dismissed the defendant's application
for stay of the order for possession pending the determination of the appeal.
 359

The effect of the order was that E. F. Hervey Limited were subject to removal
from the farms by the Sheriff. Writ of possession issued by the High Court of
Zambia was partially executed by the Sheriff of Zambia on 9th January, 1989
but on 10th January, 1989 E. F. Hervey Limited moved back the items
removed by the Sheriff and for reasons best known to the Sheriff no further
action was taken by him on the writ of possession.

p128

5. Instead, the plaintiff, an established resident, was detained by immigration

officers on the night of 9th January, 1989 and, whilst in prison on 13th
January, 1989 was served with the two notices of intention to acquire the two
farms. The plaintiff was compelled to leave the country and did so shortly
thereafter without regaining freedom.

The evidence of PW1 Munir Khan established the following:

(i) He testified in proceedings bearing case No.1983/HP/1471 and had sight

of Judge Irene Mambilima's judgment in those proceedings. The Minister of
Land was also aware of the judgment of the High Court and orders of the
Supreme Court.
(ii) He had met representatives and officers of the company E. F. Hervey
Limited, namely Raymond Barrett and Patrick Katyoka, on three to four
occasions in his office.
(iii) The witness is aware that E. F. Hervey Limited has been in
possession of the said two farms all along. Initially it was in possession
because the notifications dated 13th January, 1989 permitted Raymond
Barrett to continue occupying the farms until 12th March, 1989. Thereafter
someone authorised them to continue occupying the farms until 26th June,
1989 when he formally allowed E. F. Hervey Limited to continue farming.
The company is still in occupation and possession of the farms.

The defendant's position from the pleadings is that the farms in question were
not acquired for the purpose of giving them to E. F.Hervey Limited but were
acquired in the national interest totally divorced from the previous
proceedings before the Courts. However, the plaintiff parries this contention
by arguing that this contention is necessarily suspect in the light of the
defendant's earlier denial that E. F. Hervey Limited is not in possession and
occupation of the two farms.

The plaintiff further argues that the defendant has not pleaded what national
interest the farms were acquired for, nor has the defendant attempted to lead
any evidence in that regard and that even the resolve, if any, has not been
produced in Court. It is the plaintiff's submission that it is incumbent upon the
defendant - the State, in this case - to say the purpose for which property
(the two farms) is compulsorily acquired.
 360

It is further the plaintiff's contention that it is not sufficient for the defendant
to state that because compensation is offered it need not stipulate the purpose
of acqusition other than national interest or interest of the Republic. The
plaintiff also submits that in the absence of any evidence whatsoever, it could
therefore be concluded that the use for which the two farms have been
employed, as being the national interest or interest of the Republic, the
defendant (State) has in mind - the use by E. F. Hervey Limited.

In support of the foregoing contention and arguments, which unfortunately

were not challenged by the defendant, the plaintiff cited several authorities
which I shall refer to in the course of the judgment. In spite of the cross-
examination of the plaintiff's witnesses, the evidence of the plaintiff remained
unchallenged and uncontradicted.

This case hinges on the question of whether the said compulsory acquisition

p129

of the two farms was done mala fides (in bad faith). The plaintiff says it was
done in bad faith. The defendant gives a flat no and pleads that notices of
intention to acquire property are legal, proper, made in good faith and
therefore valid. Be that as it may, I proceed to examine the law on the
question of bad faith vis-à-vis the Act in question.

The Lands Acquisition Act, Cap. 296 of the Laws of Zambia empowers the
President of the Republic of Zambia, whenever he is of the opinion that it is
desirable or expedient in the interest of the Republic so to do, compulsorily to
acquire any property or any description that is the general thrust of this Act.
The Act does not stipulate the purpose or purpose for such compulsory
acquisition. I should hasten to say that the silence of the Act on the question of
the purpose or purpose for which the state may compulsorily acquire property
upon payment of compensation does not per se give the State a blanket
compulsory acquisition without any cause or purpose. There is a plethora of
case law in common-law jurisdiction which shows that where no purpose has
been indicated in the statute the Courts will look at the intention of the
Legislature and invariably give an implied purpose. This is an indication that
there can be no compulsory acquisition without cause or purpose.

Furthermore, in common-law jurisdictions the purpose for compulsory

acquisition of property upon payment of compensation must be a public one.
What constitutes public use frequently and largely depends upon facts
surrounding the subject. It has been held that the letting of private property not
for public use but to be leased out to private occupants for the purpose of
raising money is an abuse of the power of eminent domain and may be
redressed by action at law like any other illegal trespass, done under an
 361

assumed authority. The issue of public use is a judicial question and one of
law to be determined on the facts and circumstances of each particular case.

In the case before me the evidence has shown that aquisition of the two farms
and the allowing of E. F. Hervey Limited and Mr Barrett to remain in
occupation of the said farm for agreed rent put the compulsory acquisition,
especially the purpose for such compulsory acquisition, into question. It is
needless in my view to over-emphasise that this transaction tainted the
compulsory acquisition and is a pointer or indication that it could not have
been done in good faith especially taking into account the facts and
circumstances surrounding the compulsory acquisition. For instance the High
Court and the Supreme Court made certain decisions in regard to the subject
matter. The detention and the deportation of the plaintiff are matters that I
have taken judicial notice of and indeed the timing of the compulsory
acquisition cannot be ignored albeit s.17 of the Land Acquisition Act, Cap.
296, which reads:

''Where a notice to acquire any land under this Act has been published in
terms of s.7, the persons entitled to transfer the land shall, notwithstanding
anything to the contrary contained in any other law or in any order of any
court otherwise than under this Act, within two months of the publication of
such notices transfer the same to the President.''

Which the Minister of Lands and Natural Resources referred to in his

correspondence with the plaintiff's advocates. Taking the foregoing section

p130

into account and the total circumstances of this case, is what I may call a
deliberate move by the Minister to negate the decision of the Courts, the
matter cannot be left to rest there. All these circumstances as shown in
evidence of the plaintiff and his submissions, in my view and finding, amount
to the exercise of discretion in bad faith.

In the case before me the compulsory acquisition of the two farms, as I find it,
was solely for the interest of an individual company, E. F. Hervey Limited,
and its officers, Mr Barrett being one of them. The purported interest of the
Republic is too remote, if at all, a reason and far-fetched. It cannot be
sustained in law. What the said company and its officers failed to acquire
before the Courts of law cannot be allowed to be acquired through
intervention of the state (executive) acting in violation of the rule of the law. I
fully agree with the learned counsel for the plaintiff's submission in this
regard that 'such action is scandalous and not acceptable in a democratic
society like Zambia'.
 362

It is further clear from the facts and circumstances shown in evidence that
there was no present and immediate need for the purported acquisition of the
property in question in the national interest or interest of the Republic. See
Halsbury's Laws of England 4th ed. vol 8 para. 50.

In the instant case the state has not to this day applied the farms for a public
purpose.

As I have already found that the defendant exercised his discretion in bad
faith, the purported compulsory acquisition is null and void ab initio therefore
the plaintiff's action succeeds having proved his case on a balance of
probabilities. For the avoidance of E doubt the declaration and order of the
Court is that:

(a) the notices of intention to acquire property and to yield up possession

dated 13th January 1989 served on the plaintiff's representative whereby the
defendant purported to compulsorily acquire the plaintiff's two farms under ss.
5 and 6 of Lands Acquisition Act, Cap. 296, namely the remaining extent of
Farm 134a 'Spring' and sub-division 1 of Farm 136a both at Mazabuka
Southern Province of Zambia, are irregular and unlawful and therefore
nullified;
(b) the compulsory acquisition of the said two farms is null and void ab initio;
(c) the plaintiff is and continues to be the owner of the said two farms;
(d) the plaintiff is awarded damages to be assessed by the learned Deputy
Registrar;
(e) the defendant is condemned in costs, in default to be taxed.

Application granted.
 363

SADI SIWINGWA (being personal representative of deceased YUNA

NAMWALIZI) v JAILOS PHIRI (1979) Z.R. 145 (H.C.)

HIGH COURT
MOODLEY J
20TH APRIL 1979
1977/HK/267

Flynote

Civil procedure - Admissibility - Admissibility of evidence arising out of

previous criminal case - Lack of statutory or judicial authority - law to be
applied - High Court Act, Cap. 50, s. 10.
Evidence - Admissibility - Admissibility of evidence arising out of previous
criminal case in civil proceedings - Procedure to be followed - Civil Evidence
Act, s. 11.

Headnote

This was an action for damages and consequential loss for the death of the
deceased caused by the negligence of the defendant's servant or agent. A
preliminary issue was raised as to whether the fact that the defendant's
servant had been convicted of careless driving in relation to the fatal traffic
accident which was now the subject of these civil proceedings was admissible
in evidence.

Held:

(i) In the absence of any statutory or judicial authority in Zambia in

matters relating to practice and procedure, s. 10 of the High Court
Act, Cap. 50, provides for the High Court to exercise jurisdiction on
those matters in substantial conformity with the law and practice for
the time being in force in England.
 364

(ii) In England a conviction is admissible in evidence under s. 11 of

the Civil Evidence Act of 1968. Zambia, following the law and
practice observed in England, would follow the same procedure.

(iii) The procedure concerning the admissibility of convictions is laid

down under R.S.C. O. 18, r. 7A

Cases referred to:

(1) Hollington v Hewthorn and Co., Ltd. [1943] K.B. 587.
(2) Goody v Odhams Press Ltd. [1966] 3 W.L.R. 460.
(3) Stupple v Royal Insurance Co., Ltd. [1970] 3 W.L.R. 217.

Legislation referred to:

Civil Evidence Act 1968 (England), s. 11.
High Court Act, Cap. 50, ss. 9, 10.
Supreme Court Rules, O. 18, r. 7A

For the plaintiff: S.C.M. Malaya, Jaques & Partners.

For the defendant: M.A. Haselden, Ellis & Co.
_____________________________________
Judgment

MOODLET, J.: This is an action for damages and consequential loss for the
death of one Yuna Namwalizi deceased, caused by the negligence of a servant
or agent of the defendant when driving or managing

p146

motor vehicle Registration No. ADA 1210 14th Street, Ndola/Luanshya Road,
at Luanshya on 3rd February 1977. When the matter came up for trial on the
9th April 1979, it transpired that the plaintiff would be relying on the fact that
the defendant's servant who is alleged to have been driving the motor vehicle
in question, was convited of careless driving by the Subordinate Court,
Luanshya, in relation to the fatal traffic accident which occurred at Luanshya
on the 3rd February 1977. After consultation with the advocates for the
plaintiff and the defendant, it was decided that the court should determine, as
a preliminary issue, whether the fact that the defendant's servant hand been
convicted of careless driving in relation to the fatal traffic accident, which is
now the subject of these civil proceedings, was admissible in evidence.

Mr Haselden for the defendant submits that it was not open for the plaintiffs to
adduce in these proceedings any evidence concerning the conviction of the
defendant's servant. He relies on the case of Hollington v Hewthorn and Co.,
Ltd (1) where it wads held that both on principle and authority, that, the
evidence of a conviction in similar circumstances was inadmissible. In that
 365

case there was a collision between two motor vehicles on a highway. The
plaintiff alleged negligence on the part of the defendant driver. In the case of
civil proceedings, the plaintiff sought to give evidence of a conviction of the
defendant driver of careless driving, at the time and place of the collision.
Lord Justice Goddard delivering the judgment of the Court stated at p. 601:

"The contention that a conviction or other judgment ought to be admitted

as prima facie evidence is usually supported on the ground that the facts have
been investigated and the result of the previous investigation is, therefore, at
least some evidence of the facts that thereby have been established. To take
the present case, it could be said that the conviction shows that the Magistrates
were satisfied on the facts before them that the defendant was guilty of
negligent driving. If that be so, it ought to be open to a defendant who had
been acquitted to prove it, as showing that the criminal court was not satisfied
of his guilt, although the discussion by text-book writers and in the cases all
turn on the admissibility of convictions and not of acquittals. If a conviction
can be admitted, not as an estoppel, but as prima facie evidence, so ought an
acquittal, and this only goes to show that the Court trying the civil action can
get no real guidance from the former proceedings without retrying the
criminal case. Without dealing with every case and text-book that were cited
in the argument, we are of the opinion that both on principle and authority, the
conviction was rightly rejected."

Mr Haselden further submitted that in so far as English Law is concerned, the

decision in Hollington's case (supra) was reversed by the Civil Evidence Act
of 1968. Section 11 (1) of that Act provides:

"In any civil proceedings the fact that a person has been convicted of an
offence by or before any Court in the United Kingdom or by

p147

a court martial there or elsewhere shall . . . be admissible in evidence for

the purpose of proving, where to do so is relevant to any issue in those
proceedings, that he committed that offence . . . but no conviction other than a
subsisting one shall be admissible in evidence by virtue of this section."

Section 11 (2) provides:

"In any civil proceedings in which by virtue of this section a person is

proved to have been convicted of an offence by or before any court in the
United Kingdom or by a court martial there or elsewhere (a) he shall be taken
to have committed that offence unless the contrary is proved; and (b) without
prejudice to the reception of any other admissible evidence for the purpose of
identifying the facts upon which the conviction was based, the contents of any
document which is admissible as evidence of the conviction and the contents
 366

of the information, complaint, indictment or charge sheet on which the person

in question was convicted shall be admissible in evidence for that purpose."

It would appear therefore that on the facts such as those of Hollington's case
(supra), once the conviction had been proved, and the negligence in respect of
which the driver was convicted, identified, the courts in England in terms of
the 1968 Act will now be bound to find in favour of the plaintiff unless the
driver or his employer disproves negligence on the balance of probabilities.

Mr Haselden argues that the courts in Zambia should not give effect to s. 11 of
the Civil Evidence Act of 1968 of the United Kingdom. He contends that the
ratio decidendi of Hollington's case (supra) is still good law in Zambia and
that in those circumstances the courts should not admit in civil proceedings
any evidence concerning the conviction of the defendant's driver. He submits
that even if the provisions of the Civil Evidence Act applied in Zambia, the
plaintiff had failed to comply with the provisions of R.S.C.O. 38, r. 20,
concerning hearsay evidence, especially as the Zambian Evidence Act, Cap.
170, does not authorise the admissibility of convictions as provided for by the
United Kingdom Civil Evidence Act of 1968. Thus, it is Mr Haselden's
contention that in this regard the courts in Zambia should abide by the
common law which existed pre-1968 in England and, accordingly, the
decision in Hollington's case (supra) is still good law in Zambia. For those
reasons, evidence concerning the conviction should not be admitted.

Mr Malama for the defendant submits that while the decision in Hollington's
case (supra) was the law pre-1968 it was not necessarily good law. In fact the
decision in Hollington's case (supra) was criticised as bad law. Lord Denning
who had argued the case for the admissibility of the conviction in Hollington's
case (supra) had this to say in the case of Goody v Odhams Press Ltd (2) at p.
463:

"It would not be sufficient to prove that he was convicted of the train
robbery. The reason is because there is a strange rule of law which says that a
conviction is no evidence of guilt, not even prima

p148

facie evidence. That was decided in Hollington v F Hewthorn & Co., Ltd.
I argued that case myself and did my best to persuade the court that a
conviction was evidence of guilt. But they would not have it. I thought that the
decision was wrong at the time. I still think that it was wrong. But in this court
we are bound by it.''

Lord Salmon in the same case said as follows at p. 465:

 367

"The defendants sought to amend, no doubt, because of the strange rule of

law enshrined in Hollington v F. Hewthorn & Co., Ltd., that in a civil court
proof of a conviction is not even prima facie evidence that the convicted man
was guilty. I wholeheartedly agree with the Master of the Rolls criticism of
that decision. It is to be hoped, now that law reform is in the air, it may
perhaps be reconsidered."

Thus it was because of the wide criticism that was levelled against the
decision in Hollington's case (supra) and as a result of the recommendations
of the Law Reform Committee under the Chairmanship of Lord Pearson, the
rule of law enshrined in Hollington's case (supra) was reversed by the Civil
Evidence Act of 1968. The matter came up once again in the case of Stupple v
Royal Insurance Company Limited (3). This is a case which came before the
Court of Appeal presided once again by Lord Denning M.R. It was held in
that case that the effect of s. 11 (2) (a) of the Act of 1968 was to shift the legal
burden of proof. Lord Denning at pp. 223 and 224 states as follows:

"I think that the conviction does not merely shift the burden of proof. It is
a weighty piece of evidence of itself. For instance, if a man is convicted of
careless driving on the evidence of a witness, but that witness dies before civil
action is heard (as in Hollington v Hewthorn [1943] 1 K.B. 587); then the
conviction itself tells in the scale in the civil action. It speaks as clearly as the
witness should have done had he lived. It does not merely reverse the burden
of proof. If that was all it did, the defendant might well give his own evidence
negativing want of care and say: 'I have discharged the burden. I have given
my evidence and it has not been contradicted.' In answer to the defendant's
evidence, the plaintiff can say to him: 'But your evidence is contradicted. It is
contradicted by the very fact of your conviction.' In addition Mr Hawser
sought as far as he could, to minimise the effect to shift the burden. In this,
too, he did not succeed. The Act does not merely shift the evidential burden as
it is called. It shifts the legal burden of proof. . . Take a running down case
where a plaintiff claims damages for negligent driving by the defendant. If the
defendant has not been convicted the legal burden is on the plaintiff
throughout. But if the defendant has been convicted of careless driving, the
legal burden is shifted. It is for the defendant himself. At the end of the day,
if the Judge is left in doubt, the defendant fails because the defendant has not
discharged the legal burden which is upon him. The burden is, no doubt, the
civil burden. He must show, on the balance of probabilities that.

p149

he was not negligent: see Public Prosecutor v Yuvaraj [1970] 2 W.L.R.

226, 231, in the Privy Council quite recently. But he must show it
nevertheless. Otherwise he loses by the very force of the conviction."
 368

Mr Malama submits that the principle of stare desisis still applies in Zambia.
He contends that where the laws in Zambia do not provide for a situation such
as in the instant case, then the High Court here must have recourse to and
abide by the decisions of the Superior Courts in England. The courts must
therefore follow the provisions of the Civil Evidence Act 1968 in the absence
of any comparable statutory provisions in Zambia.

I have given anxious consideration to the rival arguments in this preliminary

issue and I find I am unable to agree with Mr Haselden's submissions in this
regard. While the decision in Hollington's case (supra) may have been the
common law of England prior to 1968, the decision was reversed by the
enactment of the Civil Evidence Act, 1968. It is quite clear that since the
passage of the 1968 Act the Courts in England are duty bound to admit
evidence of a conviction in civil proceedings. I can not see how it can be
argued now that the courts in Zambia should not give effect to the law as it
applies today in the United Kingdom.

Section 10 of the High Court Act, Cap. 50, provides as follows:

"The jurisdiction vested in the court shall, as regards practice and

procedure, be exercised in the manner provided by this Act and the Criminal
Procedure Code, or by any other written law, or by such rules, order or
direction of the court as may be made under this Act, or the said Code, or such
written law, and in default thereof in substantial conformity with the law and
practice for the time being observed in England in the High Court of Justice."

There is no ambiguity in the above section. Thus in the absence of statutory or

judicial authority in Zambia in matters relating to practice and procedure then
the High Court in Zambia will exercise jurisdiction in those matters in
substantial conformity with the law and practice for the time being in force in
England. The operative words are "in substantial conformity with the law and
practice for the time being observed in England in the High Court of Justice".
It should be added that s. 9 (1) of the High Court Act, Cap. 50, empowers the
High Court to possess and exercise all the jurisdiction, powers and authorities
vested in the High Court of Justice in England. Now the law concerning the
admissibility of a conviction as evidence in civil proceedings "for the time
being observed in England" is that such evidence is admissible in terms of s.
11 of the Civil Evidence Act of 1968. It follows therefore that in Zambia the
High Court is bound to follow the "law and practice for the time being
observed in England" and admit evidence concerning a conviction in civil
proceedings.

Finally I come to rule of practice concerning the admissibility of convictions.

R.S.C. O. 18, r. 7A provides as follows:

p150
 369

"(1) If any action which is to be tried with pleadings any party intends, in
reliance on section 11 of the Civil Evidence Act 1968 (convictions as
evidence in civil proceedings) to adduce evidence that a person was convicted
of an offence by or before a court in the United Kingdom or by a court martial
there or elsewhere, he must include in his pleading a statement of his intention
with particulars of (a) the conviction and the date thereof, (b) the court or
court martial which made the conviction, and (c) the issue in the proceedings
to which the conviction is relevant."

RS.C. O. 18/7A/2 provides:

"If a party desires to rely on s. 11 of the Civil Evidence Act 1968, his
pleadings must comply with the following requirements, namely:

(1) It must expressly state that he intends to adduce evidence at the

trial that a person, whether or not a party to the proceedings, was convicted of
a criminal offence, whether on plea of guilty or otherwise; and
(2) It must give the specified particulars required.

It should not be assumed that pleading particulars of the conviction is

itself sufficient to specify the issue in the proceedings to which such
conviction is relevant: Particulars of this fact must be stated in the pleading.
'Unless the pleading of a party complies with the above requirements, he will
not ordinarily be enticed at the trial to adduce evidence of such conviction or
to rely upon Section 11 of the Act, and, subject to the directions of the trial
Judge, he may first have to obtain leave to amend his pleading. On the other
hand, the conviction of a criminal offence is admissible in evidence under
Section 11 (1) of the Act, even though the person so convicted is not a party to
the proceedings, and in such case, it may well be that the imperative
requirements as to pleading criminal conviction may have to be relaxed."

Thus, for the foregoing reasons, Mr Haselden's preliminary objection fails. I

hold that, subject to the provisions of R.S.C. O. 18/7A, the plaintiff is entitled
to adduce in these civil proceedings evidence concerning the conviction of the
defendant's servant.

Preliminary objection rejected

 370

KABWE TRANSPORT COMPANY LIMITED v PRESS TRANSPORT

(1975 LIMITED) (1984) Z.R. 43 (S.C.)

SUPREME COURT
SILUNGWE, C.J., GARDNER AND MUWO, JJ.S.
5TH APRIL AND 2ND AUGUST, 1984
(S.C.Z. JUDGMENT NO. 10 OF 1984)

Flynote

Civil procedure - Evidence - Conviction - Evidence of - Admissibility in Civil

proceedings.
Evidence - Criminal conviction - Evidence of - Admissibility in Civil
proceedings.
Evidence - English practice and procedure - Zambia Evidence Act - Whether
English practice applies.
Evidence - Sketch plan - Contents.

Headnote

During the hearing of this appeal two specific issues were raised: (i) whether
evidence of previous criminal proceedings could be admissible in civil
proceedings; (ii) whether it was proper for a sketch plan produced in, court to
contain data which the original sketch plan prepared at the scene of the
accident did not contain.

Held:

(i) It is of the utmost importance that all details end

measurements should be inserted in the sketch plan at the tinge
of viewing the scene of the accident.
 371

Per curium:

(ii) Where there is a specific Act dealing with a matter of law,

such as evidence, there is no default of legislation as envisaged
by section 10 of the High Court Act and English practice and
procedure does not apply. Siwingwa v Phiri (1979) Z.R. 145
disapproved.

p44

Cases cited:
(1) Baker v Market Harborough. Industrial Co-op. Society Limited, [1953] 1
W.L.R. 1472.
(2) Chanda v The People, (1975) Z.R. 131.
(3) Hollington v F Hewthorn anal Company Limited, [1943] 2 All E.R. 35.
(4) Siwingwa v Phiri, (1979) Z.R. 145.

Legislation referred to:

(1) Civil Evidence Act of England, 1968.
(2) Evidence Act of Zambia, Cap. 170.
(3) High Court Act, Cap. 50, s. 10.

For the appellant: A.M. Hamir, Solly Patel, Hamir and Lawrence.
For the respondent: J.H. Jerarey, D.H. Kemp and Company.
__________________________________________
Judgment

GARDNER, J.S.: delivered the judgment of the court.

This is an appeal from a judgment of a judge of the High Court. For

convenience we will refer to the appellant as the plaintiff and to the
respondent as the defendant as they were in the court below. The facts of this
case were that the plaintiff's driver was driving on the Lusaka/Kabwe road.
The driver was driving an articulated vehicle consisting of one mechanical
horse and three trailers. In the opposite direction the defendant's driver was
driving a truck towing a trailer behind it. There was a collision as a result of
which two persons in the plaintiff's vehicle were killed but two persons in the
defendant's vehicle survived.

This case arises out of a claim by the plaintiff against the defendant for
negligent driving as a result of which damage was caused.

The learned trial judge found that there was not sufficient evidence for him to
decide which of the two drivers was to blame. He, therefore, in accordance
with the recommendations laid down in the case of Baker v Market
Harborough Industrial Co-op Society Limited (1), found that he had no
 372

alternative but to find that both the plaintiff's driver and the defendant's driver
were equally to blame for the accident. He awarded fifty percent damages on
each side.

Mr Hamir, on behalf of the appellant, has argued that the real evidence in the
case indicates that both vehicles were driving towards each other and they
were near the centre line in the road. The learned trial judge found that it was
probable that both vehicles may have been driving near the centre line of the
road. He found, however, that there was not sufficient evidence for him to
decide whether or not one of the drivers was more to blame than the other, and
that is the reason why he decided that each was fifty percent to blame. Mr
Hamir, argued that, on the evidence as presented to the court, it was clear that
both vehicles were approaching each other near the centre line of the road, and
that, if the learned trial judge had been correct in his final analysis of the
evidence, it must be accepted that both leading vehicles would have

p45

sustained damage to their right hand off sides. He pointed out that, according
to the photographs which were taken after the accident, there was no damage
at all to the front off side of the defendant's vehicle and that, therefore, the
judge's finding must inevitably have been wrong. If Mr Hamir were correct in
his argument we would have to agree that the absence of damage to the right
hand side of the front of the defendant's vehicle would indicate that there
could not have been a near head-on collision.

Mr Jearey, for the respondent/defendant, has argued however that the

evidence did not support a finding by the learned trial judge that there was a
near head-on collision, rather he argued, the learned trial judge found that
there was insufficient evidence to establish how the accident happened. He
pointed out that the most important witness for the plaintiff was the plaintiff's
third witness who arrived at the scene shortly after the accident and was a
qualified mechanic. This witness gave his views as to the cause of the
accident that, on the curve of the road shown on the sketch plans which were
presented to the court, the defendant's vehicle and trailer must have "jack
knifed" and that the defendant's vehicle must have been on its wrong side of
the road because of the evidence of a deposit of mud and oil stains at what he
considered to be the point of impact. However, this witness, when questioned
by the learned trial judge, gave evidence that made his reconstruction of the
accident, to say the least, doubtful because that reconstruction depended upon
one of the trailers being dragged for at least fifty metres and he said that there
was no evidence of such dragging.

Mr Jearey also criticised the nature of the sketch plans which wore submitted
to the court. In this respect, we would draw the attention of the parties to the
 373

comments that we made in the case of Chanda v The People (2), in which we
said as follows:

"(ii) The "real" evidence (ie. skid or other tyre marks, the position of
broken glass and dried mud droppings, the Position of the vehicles after the
accident, the nature and lotion of damage to the vehicles and so on), will
frequently enable the court to resolve conflicts between the evidence of eye
witnesses, and should be carefully observed and recorded by the police officer
who examines the scene."

In this case, the sketch plans did indicate the information required. However,
some of the measurements were not included in the original sketch plan made
at the scene of the accident but were inserted later. We do not think that this
failure affects the results of this appeal. How ever, we agree with Baron
D.C.J., that it is of the utmost importance that all details and measurements
should be inserted in a sketch plan at the time of viewing the scene of the
accident.

The learned trial judge, in his judgment, made it quite clear that he was
doubtful whether the opinion of the plaintiff's third witness, albeit that he was
the most immediate witness after the accident, was reliable.

p46

Mr Jearey has argued that it is the responsibility of the plaintiff to prove an act
of negligence by the defendant and, he has quite properly pointed out that the
learned trial judge had the advantage of seeing the witnesses and was able to
evaluate their evidence.

A further point on a matter of law has been raised by Mr Jearey, that is

whether it is improper in the courts of this country for evidence of previous
criminal convictions to be produced. Mr Jearey has referred us to the case of
Hollington v F. Hewthorn & Company Limited (3), in which it was held that a
certificate of a conviction cannot be tendered in evidence in civil proceedings.
The ratio decidendi of that case was that the criminal proceedings were not
relevant and that they were "res alios inter acta". The case of Siwingwa v Phiri
(4), which was decided in this country by a High Court judge resulted in a
ruling that the Civil Evidence Act 1968 applied in this country by virtue of
section 10 of the High Court Act, which provides that the practice and
procedure at present prevailing in the courts of England and Wales shall apply
in this country. Mr Jearey argued that that provision can be called in aid in
default of any legislation in Zambia. There is in fact in Zambia an Evidence
Act, Cap. 170,in which there is no provision for the calling of evidence in
criminal proceedings to assist a decision in civil proceedings. This Court has
been asked to decide whether the provisions of section 10 of the High Court
Act enables courts in this country to decide that there is an absence of
 374

legislation when, in this specific instance, there is a definite act dealing with
evidence. We have no hesitation in finding that, where there is a specific act
dealing with a matter of law, such as evidence, in this country, there is no
default of legislation as envisaged by section 10 of the High Court Act. The
result, therefore, is that there is no provision for convictions in criminal trial to
be referred to and taken note of in a civil trial. For this reason, therefore, albeit
that our remarks are obiter dicta, the decision in the case of Siwingwa v Phiri
(4), must incur the disapproval of this court.

Despite Mr Hamir's argument that the plaintiff's third witness is a qualified

motor mechanic and that he was the first to arrive at the scene of the accident,
we agree with Mr Jearey that this does not assist in an argument that the
learned trial judge's decision was wrong. As Mr Jearey has pointed out, this
was a most complicated accident involving a vehicle towing a trailers and a
mechanical horse towing two trailers, and even an expert in dynamics would
probably find it difficult to reconstruct the accident to determine the cause.
The plaintiff's third witness, however, was not an expert in dynamics and his
evidence on the facts before him, which could have been misinterpreted, was
of no great assistance to the learned trial judge.

We dismiss this appeal with costs to the respondent.

Appeal dismissed
 375

MANFRED KABANDA AND KAJEEMA CONSTRUCTION v JOSEPH

KASANGA (1990 - 1992) Z.R. 145 (S.C.)

SUPREME COURT
GARDNER., SAKALA AND CHAILA., JJ.S.
2lST JULY,1992
(S.C.Z. JUDGMENT NO. 2 OF 1992)

Flynote

Damages - Vicarious liability - Allocation of damages whether proper.

Damages - Fatal Accidents Act and Law Reform (Miscellaneous Provisions)
Act - Global award - Whether proper.
Damages loss of expectation of life - Quantum.
Tort - Negligence - Evidence of criminal liability - Use of establishing
negligence.

Headnote

The facts of the case arose out of a road traffic accident in which the first
appellant, while driving a vehicle belonging to his employer the second
appellant, hit into the back of a stationary truck, killing four passengers. One
of the dead passengers was not an employee and after damages were awarded
to her representative the appellant appealed against the order claiming that
she had not been authorised to be a passenger. One of the issues which arose
was whether the employer was vicariously liable where an employee had
flouted instructions not to carry passengers. Questions of damages related to
the nature of the award and its apportionment between the appellants.

Held:
 376

(i) An instruction to a driver not to carry unauthorised passengers

did not limit his employment therefore the employer remained
vicariously liable for any negligence on his part unless there was
specific proof to the contrary. However it was improper for the
Court to allocate damages to be paid partly by each defendant.

(ii) Even where there is no proof of the exact damage suffered it is

improper to make a global award and it is better to allocate the
damages between the Fatal Accidents Act and the Law Reform
(Miscellaneous Provisions) Act and take into account the effect
of inflation.

(iii) Despite changes in English law, results of criminal cases

may not generally be used to establish civil negligence in this
country unless the criminal evidence relates to an admission of
negligence. Kabwe Transport Co. Ltd. v Press Transport (1975)
Ltd. upheld.

Cases referred to:

(1) Hamilton v Farmers Ltd (1953) D.L.R. 382 (N.S.C.A).
(2) Co-Operators Insurance Association v Kearney [1965] S.C.R. 106; 48
D.L.E. (2 ed.).
(3) Twine v Beans Express Ltd. (1944) 62 T.L.R. 450.
(4) Kabwe Transport Co. Ltd. v Press Transport (1975) Ltd. (1984) Z.R. 43.
(5) Litana v Chimba and Another (1987) Z.R. 26.

For first and second appellants: S. Akalutu Z.S.I.C.

For the respondent E.M. Mukuka, E. M. Mukuka and Co.

Judgment

GARDNER, J.S.: delivered the judgment of the Court.

This is an appeal against a judgment of the High Court awarding K35,000.00

against the first and second appellant for damages suffered by the deceased
Margaret Nangabo as a result of the negligent driving by the first appellant of
the second appellant's motor vehicle.

The facts of the cases were that the first appellant was driving a vehicle
belonging to his employer, the second appellant, at Kashitu on the Ndola-
Kapiri-Mposhi Road. When the scene of the accident was investigated by the
police, it was found that the vehicle driven by the first appellant had driven
into the back of a truck in front of it at night. The driver, that is the first
appellant, was alive at the scene but four of his passengers were dead. One of
these was the deceased.
 377

DW1 gave evidence that he was called to the scene of the accident and he
found that the vehicle of the second appellant's company had been involved in
an accident and was damaged beyond repair. He said that one of the
passengers who had been killed was the senior buyer of the second appellant
company which is one of the subsidiary companies of the holding company of
which he was the transport operations manager. He said that the deceased in
this case was not a member of staff of the second appellant company and that
the drivers of that company were not allowed to carry passengers, which
instruction was written on the doors of the vehicle on the driver's side. He
confirmed that the driver was on duty returning from a buying expedition and
that authority for carrying passengers could be obtained from the second
appellant company.

The learned trial judge found that in the absence of evidence from the first
appellant, it was clear that the first appellant had collided with the truck in
front of him at night as a result of his own negligence. He

p147

referred to the fact that the first appellant had appeared before him as a trial
judge in a case of causing death by dangerous driving and that due to the
intricacies of the criminal law the charge was reduced to careless driving
which the first appellant had readily admitted. The learned trial judge then
found that there had been no evidence from a representative of the second
appellant company that the deceased was not authorised to travel as a
passenger in the vehicle. However, he went on to discuss the question of the
law relating to vicarious liability and found that he would follow if necessary
the case of Hamilton v Farmers Limited [1] which decision was followed in
the case of Co-Operators Insurance Association v Kearney [2]. In those two
cases the Courts had found that the decision in the case of Twine v Beans
Express Ltd. [3] should not be followed, on the ground that the prohibition
against giving lifts to unauthorised persons did not limit the servant's
employment, which was to drive the truck, but was merely a direction as to
the method of so doing. Consequently, the learned trial judge found that the
first appellant was negligent in causing the death of the deceased, that he was
driving in the course of his employment by the second appellant who was
liable and that the respondent had suffered damages in the sum of K35 000.00.
He then ordered that the first appellant should pay K15 000.00 of such
damages and the second appellant should pay K20 000.00.

Mr Akalutu on behalf of the second appellant argued a number of grounds of

appeal. The first was that the damages should not have been awarded as a
global figure but should have been apportioned between the Law Reform
(Miscellaneous Provisions) Act and the Fatal Accidents Act, and further that,
that having been done, the damages awarded under the Law Reform
 378

(Miscellaneous Provisions) Act should be subtracted from the damages

awarded under the Fatal Accidents Act. Mr Mukuka on behalf of the
respondent did not contest these grounds of appeal and we also agree that it is
improper in such cases to award a global figure of damages. It is better for the
benefit of the parties, and, indeed, of this Court, to allocate the damages
between the Acts which we have mentioned.

As to whether damages under the Law Reform (Miscellaneous Provisions)

Act should be deducted from an award under the Fatal Accidents Act, there
was, in this case, no evidence that the beneficiaries of the estate of the
deceased were the same as the dependants so the question does not arise.

Mr Akalutu then argued that reference to the outcome of the criminal case
against the first appellant should not have been used to support the finding of
negligence. We agree that, in accordance with our judgment in Kabwe
Transport Ltd. v Press Transport Co. Ltd. (1975) [4], although there has been
a change in the law in England, that change does not affect the law in this
country and the results of criminal cases may not be referred to in support of
findings of negligence in a civil case. However, in this particular case, as we
have indicated, the evidence of the respondent and of the police officer was
that, at the time when the first appellant was interviewed by the police in the
first instance, the first appellant had admitted that he had run into the back of
the vehicle in front of him because he had not seen it until he was too close,
and when the first

p148

appellant was charged with a criminal offence by the police he admitted the
charge of dangerous driving. That evidence was admissible although it related
to a criminal case, and the learned trial judge's finding based on that evidence
cannot be disturbed.

As to the learned trial judge's discussing of the law relating to vicarious

liability, in view of the finding in this judgment, there is no need for us to
discuss the cases referred to by the learned trial judge. We are quite satisfied,
despite the arguments of Mr Akalutu, that the senior buyer, who was
unfortunately killed in the accident, had authority, as the most senior person in
charge of the vehicle belonging to the second appellant, to authorise the driver
to give lifts. We appreciate that Mr Akalutu argued that only the managing
director of the second appellant company could give such authority but we
find such an argument to be unrealistic in the circumstances of this case and
indeed in the circumstances of the normal conduct of the running of the
company. We also agree with the learned trial judge that the onus was on the
second appellant to prove that the deceased in this case had not been
authorised. In the event no evidence was called that the second appellant had
 379

not authorised the driver to carry the deceased as a passenger, and, on the
facts, it is most unlikely that the driver of the vehicle would have given a lift
to anyone who did not have the approval of the senior buyer. For the reasons
we have given the appeal against the findings that the second appellant was
liable in damages cannot succeed.

As to the question of damages, as we have said, we agreed with the comments

made by Mr Akalutu as to the improper method used in this case for the
allocation of damages. We would also point out that both appellants are
equally liable for the whole of the damages and it was wrong for the learned
trial judge to allocate damages to be paid partly by one defendant and partly
by another in the circumstances of this case.

As to the quantum of damages which had not been argued, we take this
opportunity to indicate what we consider to be the effect of inflation since the
case of Litana v Chimba and Another [5]. That judgment related to a case
where a High Court assessment of damages had been made on 12th July,
1987, and this Court said that damages for loss of expectation of life at that
date should be K3 000.00 regardless of the age of the deceased. The
assessment of damages in this case was on 27th March, 1991, by which time
the rate of exchange relating to hard currencies and the kwacha has increased
to a very great extent. Based on the increase in inflation between the date of
the Litana case and the date of this case, we would award damages of K25
000.00 for loss of expectation of life at the latter date. Despite the fact that
there was no evidence relating to the exact damages suffered by the
dependants as a result of the death of the deceased, we appreciate that there
must be such damages and we would award a nominal sum in that respect of
K10 000.00 under the Fatal Accidents Act making a total award of
K35,000.00.

For the reasons we have given, the appeal is dismissed with costs to the
respondent.
Appeal dismissed.
 380

DOUBLE MWALE v THE PEOPLE (1984) Z.R. 76 (S.C.)

SUPREME COURT
NGULUBE, D.C.J., GARDNER AND MUWO, J.J.S.
18TH JANUARY AND 15TH FEBRUARY, 1983
(S.C.Z. JUDGMENT NO. 4 OF 1983.)

(Editor's note: Through inadvertence we omitted this case in our 1983

reports hence its inclusion in this report).

Flynote

Evidence - Witnesses - Court's Power to call - Discretion - Exercise of.

Headnote

When making his defence at his trial for murder, the accused told the court
that in the course of the fight with the deceased, the deceased had struck him
on the mouth with a panga thereby knocking out two of his teeth, and that it
was after this that he retaliated with a log thereby causing the death of the
deceased. The accused mentioned the name of a person who allegedly took
the alleged panga from the scene. Had the trial court accepted this story, the
defence of provocation would have been available to the accused; however,
without making any effort to call the person named by the accused, the trial
court rejected the accused's story and convicted him of murder. The accused
appealed.

Held:

(i) When an issue which has arisen is essential to the just decision
of the case, it is mandatory for the trial court to call or recall the
appropriate witness under s. 149. C.P.C.
 381

(ii) In exercising, its power to call witnesses a court must have

regard to the traditional considerations for the exercise of a judicial
discretion in criminal matters; and the section could not legitimately
be used for purposes such as supplying evidence to remedy defects
which have arisen in the prosecution case or where the result would
merely be to discredit a witness.

(iii) Unless a vital point has arisen ex improviso which it is essential

to clarify, the court should not normally exercise its discretion of its
own motion when the result may be simply to make accused's
position worse than it already is.

Cases cited:
(1) Liyumbi v The People, (1978) Z.R. 25.
(2) Chibangu v The People, (1978) Z.R. 37.
(3) Whiteson Chilufya v. The People, C.A. No. 53 of 1970, S.J.Z. No. 35 of
1970.
(4) Zakeyu v R. [1963] R. & N. 434.
(5) Sullivan v R. [1921-22] Cr. App. Rep. Vol. XVI 121.
(6) The King v Dora Harris, [1927] 2 K.B. 587.

Legislation referred to:

Criminal Procedure Code, Cap. 160, s. 149.

For the appellant: N.L.Patel, Acting Director of Legal Aid.

For the respondent: N. Sivakumaran, Assistant Senior Stale Advocate.

__________________________________________
Judgment

NGULUBE, D.C.J.: delivered the judgment of the court.

The appellant was convicted of murder. The salient facts as found by the
learned trial judge were these: On 20th July, 1979, at about 1900 hours the
deceased arrived at a house where PWs. 1 and 2 and the appellant were eating
nshima prepared by P.W5, the appellants sister. It

p78

was common ground that when the deceased arrived, he put his hand into the
plate containing some relish without first washing his hands, as is customary.
This annoyed the appellant. Insults were traded and a fight ensued between
the appellant and the deceased. The fight was stopped. Immediately thereafter,
the appellant went to pick up a sizeable log which was nearby and upon his
 382

return struck the deceased with it, once only, on the head. The deceased fell to
the ground and died instantly. The learned trial judge considered the defence
of provocation. He very fairly accepted that the appellant was provoked and
that, in using the log which was at hand, there had been no time for passion to
cool. The defence nonetheless failed on the ground that the provocation was
found to have been trivial and that, consequently, the appellant had acted with
gross and savage violence which was out of all proportion to the provocation
offered. The provocation, which was found to be trivial, consisted of the
touching of the relish without washing hands, the insults, and the fight which
was stopped.

Mr Patel has submitted, on behalf of the appellant, that having regard to the
combined effect of all these factors, the learned trial judge erred ill holding
that the provocation was trivial. We are of the view that insofar as the learned
trial judge's finding rested solely on the facts and circumstances to which we
have already referred and which he had accepted, this submission cannot
stand. Authorities to which the learned trial judge had made reference and
indeed the previous decisions of this court (see for example Liyumbi v The
People (1) and Chibangu v The People (2)) all support the view that the
provocation would be regarded as trivial and the reaction disproportionate on
facts and circumstances such as those we have just referred to.

Before dealing with Mr Patel's further and major submission, it is necessary to

set out the circumstances in which it has arisen. When the appellant was put
on his defence he made an unsworn statement. In it, he repeated more or less
what the eyewitnesses for the prosecution had stated save that he introduced a
factor which, if believed, would have drastically altered the seriousness of the
provocation, making it no longer a trivial matter. The appellant had stated
that, in the course of the fight, the deceased had struck him on the mouth with
a panga, knocking out two of his teeth (which he produced as exhibits) and
that it was after this that he had picked up the log with which he had struck the
deceased. He had then gone to show the injury he sustained to his aunt, and
that PW.4 (as the latter confirmed) had apprehended him at her house. The
appellant had alleged that it was PW.4 who had carried away the panga from
the scene. The appellant's allegation concerning a panga was rejected as an
afterthought on the ground that counsel acting for him at the time had not
cross-examined any of the prosecution witnesses on the point. The trial court
regarded it as most probable that the appellant had lost his teeth at the hands
of the villagers when the appellant was apprehended and tied up.

Mr Patel has argued that, despite the failure by counsel to cross-examine the
prosecution witnesses concerning the panga, the appellant was

1984 ZR p79
NGULUBE DCJ
 383

entitled to put forward his story even at that stage in his unsworn statement.
He argues that it was imperative for the proper determination of the
seriousness or otherwise of the provocation that the learned trial judge should
have investigated this essential point and not speculate as to how the appellant
came to lose his teeth. In the circumstances, Mr Patel submits that the learned
trial judge had misdirected himself in two respects; firstly, in failing to
consider at all the provisions of section 149 of the Criminal Procedure Code,
Cap. 160 and secondly, in failing to find that evidence regarding the
appellant's loss of teeth was essential to the just decision of the case. In order
to appreciate this submission, it is necessary that we set out the provisions of
the section referred to, which reads:

"149. Any court may, at any stage of an inquiry, trial or other proceeding
under this Code, summon any person as a witness, or examine any person in
attendance though not summoned as a witness, or recall and re-examine any
person already examined; and the court shall summon and examine or recall
and re-examine any such person if his evidence appears to it essential to the
just decision of the case:

Provided that the prosecutor or the advocate for the prosecution or the
accused person or his advocate shall have the right to cross-examine any such
person, and the court shall adjourn the case for such time (if any) as it thinks
necessary to enable such cross-examination to be adequately prepared if, In its
opinion, either party may be prejudiced by the calling of such person as a
witness."

This section has been cited by Mr Patel in support of his argument to the
effect that the learned trial judge should have appreciated the importance of
the allegation made by the appellant and should have exercised his powers
under that section to recall the prosecution witnesses for the purpose of
ascertaining the truth or otherwise of the allegation which, if true, would
obviously have altered the result. As we see it, the power conferred upon the
trial court by this section is designed to ensure that justice is done, not only to
the accused but to society as well. But, the power so conferred should only be
exercised in a proper case and for that reason must be regarded as
discretionary. It is our opinion that, before the trial court can exercise the
power conferred by the section, regard must be had to the traditional
considerations for the exercise of a judicial discretion in a criminal matter.
Thus, though the terms of the section are wide and the discretion conferred
considerable, the section could not legitimately be used for purposes such as
supplying evidence to remedy defects which have arisen in the prosecution
case or where the result would merely be to discredit a witness (see for
instance Whiteson Chilufya v The People (3)). We are in general agreement
with the Federal Supreme Court's observations in Zakeyu v R (4). (an appeal
from the High Court of Southern Rhodesia but dealing with a similar
 384

provision) to the effect that, though the terms of the section go so far as to
impose a duty to call a witness essential to the just decision of the

p80
case, the duty cannot extend to calling a witness simply to rebut or confirm
what another witness has said on a collateral issue which is neither crucial nor
vital to such just decision. We are of the view that, unless a vital point has
arisen ex improviso which it is essential to clarify, the court should not
normally exercise its discretion of its own motion when the result may be
simply to make an accused's position worse than it already is. In this particular
case, however, we do not see how the appellant's position would have been
made any the worse had the trial judge recalled the witnesses on the point
which, both Mr Patel and Mr Sivakumaran suggest, had arisen ex improviso.
At this stage we would like to comment on a suggestion made by the Acting
Director of Legal Aid to the effect that, where an issue which has arisen "is
essential to the just decision of the case", it is mandatory for the trial court to
call or recall the appropriate witness. We agree with the learned Acting
Director's proposition, and in this regard we are guided by the decision of the
Federal Supreme Court in Zakeyu (4) to the effect that the sections in that
event, goes so far as to impose a duty on the trial court to call or recall
appropriate witnesses.

Assuming for the sake of argument that both counsel are right in suggesting
that the appellant had raised, for the first time in his statement, the allegation
that the deceased had knocked out his teeth with a panga, there is authority for
saying that, having regard to the importance of the allegation, the learned trial
judge would have been justified in exercising his discretion to recall the
eyewitnesses and in particular, PW. 4 who it was alleged had carried away the
pangas. It would then have been possible to ascertain the truth as to whether
or not the appellant had lost his teeth at the hands of the deceased.

In William Sullivan v R. (5), the accused made an allegation, for the first time,
in his evidence, suggesting that someone else may have murdered the
deceased. The trial judge recalled some witnesses who gave rebutting
evidence. On appeal, the Court of Criminal Appeal held that, so far as that
was rebutting evidence to answer evidence set up by the accused for the first
time, no objection could be taken. Again, in The King v Dora Harris (6), it
was accepted that, if the interests of justice so demand, a judge can call a
witness on a matter which has arisen ex improviso, which no human ingenuity
can foresee, on the part of the prisoner. If, therefore, the appellant in this case
had raised the allegation in issue ex improviso, we would agree with Mr
Patel's submission that, having regard to the importance of the matter so
raised, and having regard to the terms of section 149 of the Criminal
Procedure Code, the learned trial judge had misdirected himself in the manner
alleged.
 385

But, it was in fact not correct to say that all the prosecution witnesses had not
been cross-examined on the suggestion that the deceased had knocked out the
appellant's teeth. In this regard, the record shows that both PW. 4, who had
apprehended and bound the appellant, and PW. 7, the investigating officer,
had been cross-examined on this issue.

Admittedly, the use of a panga was not canvassed at that stage, but then there
can be no doubt that the appellant was advancing the basic allegation that it
was the deceased who had knocked out his teeth.

p81

Furthermore, there was evidence that the appellant had kept his teeth
especially to produce as evidence. In these circumstances, we consider that the
learned trial judge had misdirected himself on the facts when he found that the
appellant's allegation was an afterthought on the ground that none of the
prosecution witnesses had been cross-examined on the point.

In all the circumstances and for the foregoing reasons we feel that it would be
unsafe to allow a conviction for murder to stand. However, the undisputed
facts amply justify a conviction on the lesser charge of manslaughter. In the
result we allow the appeal against conviction on the charge of murder. That
conviction is quashed and in its place we substitute a conviction for
manslaughter contrary to section 199 of the Penal Code.

Appeal allowed
 386

GARNET INDUSTRIES LTD v DAVID RICHARD EVERSON (1987)

Z.R. 104 (S.C.)

SUPREME COURT
NGULUBE, D.C.J., GARDNER AND SAKALA, JJ.S.
20TH JANUARY, AND 13TH FEBRUARY, 1987.
(S.C.Z. JUDGMENT NO. 1 OF 1987)

Flynote

Civil Procedure - Counterclaim vague - Summary judgment - Whether

appropriate.

Headnote

The Plaintiff applied for summary judgment on his claim for money due under
a contract of employment. The defendant did not deny the claim but raised a
counter claim for an unspecified secret profit made by the plaintiff for
"unknown services". The Deputy Registrar gave the defendant leave to
defend. A Judge reversed that decision and gave judgment to the plaintiff. The
defendant appealed.

Held:

The Court may disallow raising of a counter claim in a plaintiff's action in

which event the defendant must commence his own independent action if he
is minded to pursue such cross-claim. In this case the counterclaim referred
to "unknown services" and was singularly lacking in visible merit. The
court found this to be an appropriate case to disallow it.

Case cited:
 387

(1) Miles v Bull [1969] 1 Q.B. 258

For the appellant: H. H .Ndhlovu, H.H. Ndhlovu and Associates .

For the respondent: S. Sikota, Chigaga and Co.

__________________________________________
Judgment

NGULUBE, D.C.J.: delivered the judgment of the court.

On 20th January last we dismissed this appeal with costs and said then that we
would give our reasons later, this we now do. For convenience, we will refer
to the respondent as the plaintiff and the appellant as the defendant which is
what they were in the action. The brief facts and history of the case can be
shortly stated: The plaintiff issued a specially endorsed writ claiming the sum
of K26,334.18n as money due to him from the defendant under a contract of
service which had determined. After the defendant had entered appearance,
the plaintiff took out a summons under Order 13. Affidavits were filed and,
for reasons which will become obvious, it is necessary to set out certain
portions of such affidavits. Paragraphs 7, 8 and 9 of the plaintiff's affidavit in
support read as follows:

"7. That on 14th October, 1985 I gave the defendant 3 months' notice
of my intention to resign in accordance with the Provisions of my contract.
There is now produced to the and marked exhibit "DRE 2" a true copy of my
letter of resignation.

p105

8. That on the 16th October, 1985 the defendant purported to

terminate my services with immediate effect in contravention of my contract
of service.
9. That the defendant owes the following payments arising from the
contract:

(a) September 1985 salary K1,475.00

(b) 16 days salary for October 1985 K 735.00
(c) 3 months salary in lieu of notice K4,425.00
(d) 4 months gratuity at 25% of K1,125.00 per month
K1,125.00
(e) 8 months and 18 days gratuity at 25% of K1,475.00 per
month K3,534.32
(f) 28 leave days pay K1,332.26
(g) Value of 3 Air tickets to
the United Kingdom K13,707.60
Total K26,334.18"
 388

There then followed the usual averment, as required by Order 13 rule 1, that in
his belief there was no defence to the action. The defendant's affidavit in
opposition was sworn by its managing director and paragraphs 5 to 9 thereof
were in the following terms:

"5. That I have read the affidavit of the plaintiff filed herein and in
reply would say that the defendant has counter claims against the plaintiff as
follows.
6. That the plaintiff purchased a motor vehicle from Mr Ramesh Patel
of Lilongwe in Malawi at the sum of Malawi kwacha 9,500.00 to be paid for
out of remittances of the plaintiffs salary with the defendant. The repayments
were guaranteed by the defendant and since August, 1985 when the said
vehicle was purchased no payments have been made to the seller and the
defendant may as guarantor be called upon to make good the plaintiffs default.
7. That prior to the plaintiffs arrival in Zambia, he obtained the total
sum of 950 pounds sterling from the defendant's associates in the U.K. These
sums were guaranteed by the defendant and the plaintiff has not paid the
money back from his remittance as earlier on agreed.

p106

8. That during the course of his employment with the defendant the
plaintiff provided unknown services to Zambezi Auto and Marine Services
Limited and was paid the sum of K10,000 for which no account has been
made to the defendant and which account the defendant claims.
9. That the plaintiff obtained advances totalling K2,394.47 from the
defendant and its associate companies which sum is still due and owing and
the defendant will apply that the same be set off .

The learned deputy registrar determined that on the affidavits triable issues
had been raised - without saying what these were - and gave the defendant
unconditional leave to defend. At the rehearing on appeal by the plaintiff to a
high court commissioner at chambers, the learned deputy registrar's decision
was reversed and the plaintiff granted leave to enter summary judgment on the
ground that, in the opinion of the learned appellate High Court commissioner,
the defendant had not raised any defence on the meets. The learned high court
commissioner was in agreement with the submissions made on behalf of the
plaintiff to the effect that, the indebtedness not having been disputed by the
defendant, there was no defence to the claims and that the counter claims
raised were in any case untenable. It is against such determination that the
defendant has appealed to this court.

On be half of the defendant, Mr Ndhlovu advanced two grounds of appeal

which are closely related to each other. The first ground was that the learned
 389

commissioner erred in both law and fact in finding in there was no defence to
the plaintiff's action and in finding that there was no triable issue to allow the
defendant leave to defend the action. The second ground was that the learned
commissioner erred in law and fact in finding that there was no triable issue
because the defendant did not specifically deny owing the money. Mr
Ndhlovu had an ingenious argument under these grounds. While accepting
that there was nothing us the defendant's affidavit which could be regarded as
a specific defence to the plaintiff's claims, he nevertheless argued that there
was an implied defence, or at any rate a triable issue, which could discerned
from the affidavits. It was his submission that, since the plaintiff himself had
disclosed, under paragraph 8 of his affidavit in support, mat the defendant had
scaly terminated his services, and since there was an allegation in the counter -
claims that the plaintiff had secretly earned a sum of K10,000 in
circumstances prohibited by a clause in the contract - which the plaintiff
exhibited - the court a quo should have apprehended that the plaintiff must
have been summarily dismissed on disciplinary grounds. That being the case,
so that submission went, the plaintiff would not be entitled to, and the
defendant had a defence to, the claim for salary in lieu of notice and those
portions of the claims for gravity and leave pay as were based on the period of
three months notice not given.

As Mr Sikota for the plaintiff lightly pointed out, the defendant was raising
the defence of dismissal for the first time in this appeal. In this regard Mr
Ndhlovu was, in effect, inviting this court to make a number of assumptions
in his client's favour, and adverse to the plaintiff, and to assume that the
plaintiff had in fact been summarily dismissed on disciplinary grounds and
that the consequences of such dismissal were as suggested by him.

p107

We must decline Mr Ndhlovu's invitation. In the first place, we must point

out that under Order 13 a plaintiff will be spared the cost and inconvenience
of going to trial to establish a claim to which there is no bona fide defence. In
the second place, Order 13 Rule 1 requires the court to grant leave to the
plaintiff to enter summary judgment unless the defendant by affidavit, by his
own viva voce evidence or otherwise satisfies the court that he has a good
defence to the action on the merits, or discloses such facts as may be deemed
sufficient to entitle him to defend. The defendant must show cause against the
plaintiffs application for summary judgment and when this is sought to be
done through an affidavit in opposition, as it usually is, such affidavit should
deal specifically with the plaintiff s claim an affidavit; it should state clearly
and concisely what the defence is and what facts are relied on to support it. It
was significant, in our judgment, that the defendant made neither comment
nor submission upon the plaintiff's claim and yet the defendant expected the
court a quo to have detected, by assumption and implication, some sort of
defence. The defence contended for in this case is, in our opinion, decidedly
 390

nebulous and shadowy and we are therefore unable to say that any such
defence of dismissal arose so as to entitle the defendant to leave to defend on
that score.

It was Mr Ndhlovu's further submission that the defendants' affidavit in

opposition was badly drafted but that this factor should not have disentitled
the defendant to leave to defend the action. In his submission the contract and
the letters referred to in the plaintiff's own affidavit indicated that further
inquiry at a trial, was required in this case. He relied on Miles v Bull (1),
where it was suggested that it sometimes happens that the defendant may not
be able to pin - point any precise issue or question in dispute which ought to
be tried but that leave to defend should be given if it is apparent that, for some
other reason, there ought to be a trial. Our Order 13 Rule 1 is still couched in
terms similar to the former Order 14 Rule 1 of the English Rules: See 1985
White Book Order 143 - 49. Our Order 13 Rule 1 requires the defendant at the
very least to disclose such facts as may be deemed sufficient to entitle him to
defend generally. The new terms in the English order have introduced he
element that leave to defend should be given if the defendant satisfies the
court "that there ought for some other reason to be a trial". A number of
examples of "some other reasons" are given by the White Book, none of
which arise in this case. In Miles v Bull (1), which has been cited, a wife in
possession of a matrimonial home obtained leave to defend an action for
possession by a purchaser who bought the house from the husband under a
contract which acknowledged that she was in possession and may have certain
rights. In that case, a further inquiry was found to be necessary to ascertain
whether the sale was a sham intended to deprive her of possession so that,
even if she had no arguable defence against the purchaser's action, there
"ought for some other reason to be atria!". In the said case the wife had
specifically raised the question of the sale being a sham which, under the
appropriate statute, would afford her a ground for relief. The defendant in our
case neither disclosed any facts which could be deemed sufficient to entitle
them to defend nor put forward "some other reason" within the English rule.
The arguments in this regard could not, in our considered judgment, be
entertained. This brings us to the counterclaims. Mr Ndhlovu informed the
court, quite properly so in our view, that the only counterclaim which
appeared to have some merit in it, and which he was pursuing, concerned the
alleged secret receipt of a sum of K10,000 "for unknown services", allegedly
rendered by the plaintiff to a third party. This allegation was denied by both
the plaintiff and the third party on affidavit. It is common ground that, in
terms of our Order 28, as read with the English Orders 14 and 15, a
counterclaim would entitle a defendant to either a stay of the plaintiff s
judgment or leave to defend to the extent only of such counterclaim pending
its trial. In a suitable case, the court is at liberty to disallow the raising of a
counterclaim in the plaintiff's action in which event the defendant must
commence his own independent action if he is minded to pursue such cross -
claim. In this case, Mr Sikota has argued that the defendant did not raise a
 391

valid counter-claim when reference was made to unspecified and "unknown

services" both the rendering of, and the payment for, which were denied at
first hand by the plaintiff and the third party. We agree that the counterclaim
was singularly lacking in visible merit. For that reason, we had no difficulty in
coming to the conclusion that it should be disallowed under the plaintiffs
action, leaving it to the defendant to commence his own action if he feels able
to improve upon its presentation to the courts as a viable cause of action.

It was for the foregoing reasons that we dismissed the appeal, with costs to be
taxed in default of agreement.

Appeal dismissed

KHALID MOHAMED v THE ATTORNEY-GENERAL (1982) Z.R. 49

(S.C.)

SUPREME COURT
NGULUBE, D.C.J., MUWO, J.S. AND BWEUPE, AG .J.S.
26TH AUGUST AND 23RD SEPTEMBER, 1982
(S.C.Z. JUDGMENT NO. 26 OF 1982)
APPEAL NO. 3 OF 1981

Flynote

Civil procedure - Appeal - When appellate court may reverse findings of

lower court.
Civil procedure - Defence - Failure of defence - Whether plaintiff
automatically succeeds.
Tort- Negligence- When liable.

Headnote

The respondent's servant a fire ranger set fire to some vegetation several
hundred yards away from the appellant's farm without giving notice to him.
The ensuing fire spread onto the appellant's farm despite the fire break and
destroyed a maize crop and a field of star grass. The trial court found that the
respondent's servant could neither foresee nor abate the hazard and that the
continuation of the fire could not be attributed to him.

Held:

(i) The appellate court may draw its own inferences in opposition to
those drawn by the trial court although it may not lightly reverse
the findings of primary facts.
 392

(ii) A plaintiff cannot automatically succeed whenever a

defence has
failed; he must prove his case.

(iii) The respondent's servant's conduct in failing to give prior

notice
and burn in the proper manner amounted to negligence; and the
question of his ability to abate would only have arisen if he had
been accused of permitting the continuance of the fire.

Cases referred to:

(1) Goldman v Hargrave and Ors [1966] 2 All E.R. 989.
(2) Mulholland and Tedd Ltd v Baker [1939] 3 All E.R. 253.
(3) Mason v Levy Auto Parts of England Ltd. [1967] 2 All E.R. 62.

Legislation referred to:

Natural Resources Conservation Act, Cap. 315, ss. 2, 28.

For the appellant: W. M. Muzyamba, Chigaga and Co.

For the respondent: A. M. Kasonde, Principal State Advocate.

___________________________________
Judgment

NGULUBE, D.C.J.:

The salient facts of this case were these: On 14th September, 1974, one
Bernard Muunga, fire ranger, acting in the course of his employment, set fire
to the vegetation along the Lundazi Road at a spot some 600 yards away from
the appellant's farm. While he did notify some persons with houses near the
road he gave no notice to the appellant of his intention to burn the road side
bush. A fierce fire ensued. When the appellant was alerted he apprehended the
fire ranger and took him to the local chief but, as it turned out, that trip was
fruitless. In the meantime, the appellant mobilised his labour force and for the
whole of that afternoon and late into the night they fought bravely to bring the
fire under control. Some of the workers suffered various burns. There was
evidence that the authorities responsible for tsetse fly control had previously
cut down a lot of trees, and that while the grass-fire had been brought under
control the appellant and his workers failed to extinguish the free in the dead-
wood. There was evidence that while a few workers remained to keep an eye
on the fire in the dead-wood the rest had given up late at night, exhausted and
tired. There was evidence also that the appellant had around the farm a fire-
break

p51
 393

measuring some fifteen metres wide, a fire-break which it is to be observed

appears to have satisfied the minimum requirement for a fire-break as defined
under s. 2 of the Natural Resources Conservation Act, Cap.315. On the
morning of 15th September, 1974, the wind fanned the fire in the dead-wood
carrying flames across the fire-break. A fierce grass fire started which spread
to the appellant's unharvested maize crop and star grass causing severe loss
and damage. Proceedings were commenced in which the appellant alleged that
the fire ranger Munga, had been negligent, among other things, by his failure
to burn in a proper manner dry, tall grass in an area where there was lot of
dead - wood, logs and maize, and by his failure to give prior notice that the
area was going to set on fire. The defence was a denial that the fire ranger was
acting in the course of his employment. The learned trial judge rejected this
defence and Mr Muzyamba submits that in that event and in every case where
the defence set up is defeated, the plaintiff ought to succeed as matter of
course.

An unqualified proposition that a plaintiff should succeed automatically

whenever a defence has failed is unacceptable to me. A plaintiff must prove
his case and if he fails to do so the mere failure of the opponent's defence does
not entitle him to judgment. I would not accept proposition that even if a
plaintiff's case has collapsed of its inanition or for some reason or other,
judgment should nevertheless be given to him on the ground that defence set
up by the opponent has also collapsed. Quite clearly a defendant in such
circumstances would not even need defence.

Mr Muzyamba does, however, submit in the alternative that there was in fact
evidence of negligence on the part of the respondent's fire ranger. He attacks
the findings made by the court below that Munga, could neither have foreseen
nor abated the hazard which did arise, and that in any event the continuation
of the fire or the second fire that did break out the next day could not be
attributed to the fire ranger. He submits that having regard to the efforts made
by the appellant and his workers to fight the fire the respondents remained
answerable for the damage caused by the fire which Munga had started. There
is substance and force in Mr Muzyamba's alternative submission. I cannot
accept Mr Kasonde's submission in support of the findings below that Munga
could not have foreseen the hazard of fire spreading from the dead-wood.
Munga had, as alleged in the statement of claim, set fire to the bush which did
have dead-wood and logs. It was his failure to advise himself with regard to
the state of the vegetation and the extent to which any fire he proposed to start
might spread which formed the essence of those particulars of negligence
already referred to. Mr Kasonde submits that it was the appellant's own
negligence in failing to extinguish the fire in the dead-wood that led to the
second hazard which caused damage I do not agree. As Mr Muzyamba points
out this was not case of one or two logs burning. This was case of fire in
dead-wood from a large number of trees which the tsetse fly control
 394

authorities had cut down over large area. Again as Mr Muzyamba pointed out
this was not a

p52

case where the victim had failed to take action. The appellant and his workers
had in fact done all they could within their power and means to combat this
fire which had been thrust upon them without any prior warning, or notice as
required not only by common sense but also by s. 28 of the Natural Resources
Conservation Act, an authority in point, though not cited by counsel.

The principles applicable to case of this nature are as summarised by Lord

Wilberforce in Goldman v Hargrave and Ors (1), where after reviewing the
authorities, he said at p. 995:

"All of these endorse the development, which they lordships find in the
decisions, towards measured duty of care by occupiers to remove or reduce
hazards to their neighbours. So far it has been possible to consider the
existence of duty, general terms: but the matter cannot be left there without
some definition of the scope of his duty. How for does it go? What is the
standard of the effort required? What is the position as regards expenditure? It
is not enough to say merely that these must be "reasonable" since what is
reasonable to one man may be very unreasonable, and indeed ruinous, to
another: the law must take account of the fact that the occupier on whom the
duty is cast, has, ex-hypothesis had this hazard thrust on him through no
seeking or fault of his own. His interest, and his resources whether physical or
material, may be of very modest character either in relation to the magnitude
of the hazard, or as conspired with those of his threatened neighbour. A rule
which required of him in such unsought circumstances in his neighbour's
interest physical effort of which he is not capable, or an excessive
expenditure of money, would be unenforceable or unjust. One may say in
general terms that the existence of duty must be based on knowledge of the
hazard, ability to foresee the consequences of not checking or removing it,
and the ability to abate it. Moreover many cases, as for example in Scrutton,
L. J's hypothetical case of stamping out fire, or the present case, where the
hazard could have been removed with little extort and no expenditure, no
problem arises; but other cases may not be so simple. In such situations the
standard ought to be to require of the occupier what it is reasonable the to
expect of him in his individual circumstances. Thus, less must be expected of
the infirm than of the able bodied: the owner of small property where hazard
arises which threatens neighbour with substantial interests should not have to
do so much as one with larger interests of is own at stake and greater
resources to protect them: if the small owner does what he can and promptly
calls on his neighbour to provide additional resources, he may be held to have
done his duty: he should not be liable unless it is clearly proved that he could,
 395

and reasonably in his individual circumstance should, have done more. This
approach to a difficult matter is in fact that which the courts in their more
recent decisions have taken."

p53

In the light of this authority (which the learned trial judge referred to though
arriving at a different conclusion from mine) I would not hesitate to conclude
that the appellant who had done everything that could be done could not be
penalised, and the respondent remained liable for the consequences, of the fire
started by Munga. I appreciate that this conclusion necessarily reverses certain
findings made by the court below. While it is now accepted that an appellate
court should not lightly reverse findings made by a trial court, there is a world
of difference between findings of primary facts and findings based on the
drawing of conclusions or inferences from undisputed primary facts. In the
latter event the appellate court is in as good position to draw the inferences or
conclusions as the trial court. The basic facts of this case were not dispute.
The decision below rested on a consideration of the questions, whether or not
on those undisputed facts Munga had knowledge of the hazard, was able t
foresee the hazard and was able to abate it. The conclusion which I find the
evidence impels me to reach is that Munga had or ought to have had in his
contemplation the hazard in question, and that his failure to advise himself
with regard to the state of the vegetation to be affected by his fire as already
stated was an act of gross negligence. The ability to abate, I consider, could
only have been relevant if the respondents were accused of permitting the
continuance of the hazard much in the same manner as the appellant would
not have succeeded had it been clearly proved that he had through his own
inaction failed to abate hazard which he had the means and power to abate.
Liability depends on negligence (see, for instance, Mulholland and Tedd Ltd v
Baker (2) and Mason v Levy Auto Parts of England (3) and the appellant did
establish negligence against the fire ranger on two grounds, namely the failure
to give prior notice and the failure to burn in the proper manner by which I
apprehend the failure to take into consideration the state of the vegetation
likely to be affected by the fire should it spread, as it did spread.

For the foregoing reasons I would allow this appeal and award to the appellant
the sum of K12,000 in respect of the maize that was burnt, the sum of K820 in
respect of the empty maize bags, and the sum of K2,000 in respect of his star
grass. The plaintiff should also have his costs both here and in the court
below, to be taxed in default of agreement.

Appeal allowed
 396

CARVER JOEL JERE v DVR/SGT SHAMAYUWA AND ATTORNEY-

GENERAL (1978) Z.R. 204 (S.C.)

SUPREME COURT
SILUNGWE, C. J., GARDNER AND BRUCE-LYLE, JJ.S.
13TH DECEMBER, 1977, AND 12TH JUNE, 1978
(S.C.Z. JUDGMENT NO. 25 OF 1978)

Flynote

Civil procedure - Pleadings - Defence not pleaded - Evidence thereof given

without objection - Whether court precluded from considering.
Civil procedure - Appeal - Conclusions of fact drawn from real evidence -
Appellate court substituting its own conclusions.

Headnote

The appellant (the plaintiff) claimed damages against the first and second
respondents (first and second defendants) arising out of negligent driving of
the first defendant against whom judgment was entered in default of
appearance. The trial proceeded as between the plaintiff and the second
defendant; plaintiff's claim was dismissed.

It was argued that the defence put forward at the trial was never pleaded. It
was argued also that the trial judge should not have come to the conclusions
he did from the photographic and other real evidence. The full facts appear
from the judgment.

Held:
 397

(i) Where a defence not pleaded is let in by evidence and not

objected to by the other side, the court is not precluded from
considering it.

(ii) On the real evidence, namely the photographic evidence and the
uncontroverted positions of the vehicles after the accident, the
defendant's version of the accident was at least most unlikely and
the plaintiff's version was the more probable.

Case cited:

(1) Re Robinson's Settlement, Grant v Hobbs [1912] 1 Ch. D. 728.

For the appellant: L.P. Mwanawasa, Cave, Malik & Co.

For the respondents: R.E.M. Mwape, State Advocate.

____________________________________
Judgment

BRUCE-LYLE, J.S.: delivered the judgment of the court.

The appellant (hereinafter referred to as the plaintiff ) claimed damages for

negligence arising out of the negligent driving of the first respondent
(hereinafter referred to as the first defendant), an employee of the second
respondent (hereinafter referred to as the second defendant). Judgment was
entered against the first defendant in default of appearance and the trial
proceeded as between the plaintiff and the second defendant, and this is an
appeal against the judgment dismissing the claim of the plaintiff.

The evidence of the plaintiff in support of the claim was that on the 2nd
January, 1974, at about 8 o'clock in the morning he was driving a Ford
Fairlane car, Reg. No. EG29992 from Kitwe towards Ndola and after passing
the Mufulira turn-off and near Hillcrest he noticed a police Land - Rover
following him; that the driver of the Land - Rover attempted to overtake his
vehicle but on seeing an oncoming vehicle and in order to avoid a head-on
collision, the Land - Rover swerved to the left and in so doing ran into the rear
of his car. The plaintiff stated he became unconscious immediately after the
impact and therefore did not know what happened to the vehicles. The second
defendant's case as given in evidence by the first defendant the driver of the
police Land - Rover, was that the police Land - Rover was travelling from
Ndola towards Kitwe when he noticed a vehicle coming from the opposite
direction and being driven from left to right; that he brought his Land - Rover
to a stop on its proper side of the road and then the on-coming vehicle skidded
and made an about turn and moved towards the Land - Rover with its rear and
hit into the left side of the front bumper of the Land - Rover and then the
vehicle which was the Fairlane then went completely off the road and rested
 398

on the right side facing Ndola. The front near side of his Land - Rover was
damaged and the boot of the Fairlane was pushed in and was extensively
damaged. It was raining at the time of the accident. According to the evidence
of the police officer who visited the scene of the accident, the front side of the
Land - Rover the passenger side, was completely damaged. Photographs of
the damage to the Fairlane car were put in evidence, but the officer who
visited the scene and who gave evidence for the defence did not produce any
sketch of the positions of the two vehicles as he found them after the accident.
It is, however, apparent on the record of the proceedings that he demonstrated
to the trial court the positions of the vehicles and the learned trial judge drew

p206

sketch no doubt from the witness's demonstration. The sketch shows the
police Land - Rover on its near side of the road facing Kitwe with the two
offside wheels on the tarmac and the two near side wheels on the dirt verge.
The Fairlane is shown completely on the dirt verge facing the opposite
direction and parallel with the Land - Rover, with the bonnets of both vehicles
side by side and the front of the Fairlane lying closer to Ndola than the front
of the Land - Rover by about a quarter of the length of the latter vehicle.

Mr Mwanawasa, counsel for the plaintiff, contended that the defence put
forward at the trial was never pleaded and was never put to the plaintiff in
cross-examination and therefore the learned trial judge erred in admitting the
defence in evidence. It is one of the cardinal rules of pleadings for the party to
tell his opponent what he is coming to court to prove and to avoid taking his
opponent by surprise. If he does not do that, the court will deal with it in one
of two ways. It may say that it is not open to him, that he has not previously
raised it and will not be allowed to rely on it; or it may give him leave to
amend by raising it and protect the other party if necessary by letting the case
stand down. Where defence not pleaded is let in by evidence and not
objected to by the other side, the court is not precluded from considering it.
This is emphasised in the case of re Robinson's Settlement, Grant v Hobbs (1):

"The rule is not one that excludes from the consideration of the Court, the
relevant subject matter for decision simply on the ground that it is not
pleaded. It leaves the Party in mercy and the Court will deal with him as is
just."

In the present appeal, the defence put forward in evidence was not pleaded,
but when the defendant led evidence to put forward that defence no objection
was raised by the plaintiff and the evidence was therefore let in. In the
circumstances, the learned trial judge in my view did not err in considering
that; defence.
 399

There was a further contention of Mr Mwanawasa, that the plaintiff's evidence

not having been challenged in cross-examination the trial judge erred in
rejecting it for the reasons stated. In the judgment the following passage
appears:

". . . but I have got two additional factors to guide in coming to my

conclusions. The first is the plaintiff himself. I do not know whether it was
due to the alleged amnesia or whether it was due to some thing else. But I am
not impressed by the plaintiff's evidence and having observed him and
listened to all that he has said it is my conclusion that I cannot rely on his
story."

The plaintiff's evidence dealt in detail with his version of the accident and
itemised his damages. His brief cross-examination related mainly to his
various claims for damages and the only reference to the circumstances of the
accident is contained in the following extract from the record of his evidence
under cross-examination: "I cover Ndola/KitwE/Luanshya once per month.
Land - Rover was coming from Kitwe, not from Ndola. The road was a bit
wet. I

p207

could see the Land - Rover in my mirror. I have been driving since 1966. I
have never had an accident. I thought the other two cars would collide. There
was no time to get away because of the speed of the car behind. I did not think
of moving over - it was too quick. I did not skid."

These answers in cross-examination indicate that the only questions put to

him which could have referred to the defence version of the accident elicited
the replies:

"Land - Rover was coming from Kitwe not from Ndola"; and "I did not
skid."

On this evidence, it is difficult to understand how the learned trial judge could
say that he was not impressed by the plaintiff's evidence relating to the
circumstances of the accident to such an extent that he could not rely on his
story. A rejection of evidence because of the demeanour of a witness must in
my view be based on cogent reasons discernible from the evidence and from
the recorded observation by the trial judge.
The learned trial judge went on to say:

". . . that being so I turn to the next point. Looking at i.d. 6 (a photograph
of the rear of the plaintiff''s car), I frankly cannot see how the damage which
is shown there could have been caused if the accident happened as the
plaintiff said it happened. It is obviously clear from the photographs and in
 400

particular i.d. 6 that the Fairlane received a blow at an angle from its near side
towards its off-side. I do not think that it is reasonable that such a blow could
have been given by the Land - Rover following the Fairlane and attempting to
overtake it and then pulling back so as to strike it as the plaintiff said. It would
have had to perform such an agile manoeuvre which brought it on the inside
of the Fairlane."

There was no expert evidence available to the learned trial judge to assist him
in arriving at a conclusion based on the effects of different types of impacts.
In my view, in the absence of such evidence it was wrong for the learned trial
judge to rule out the possibility of the accident occurring as the plaintiff said it
did because an agile manoeuvre would have been required from the
defendant's vehicle. The photograph in question shows a deep sharp dent in
the near side rear corner of the plaintiff's vehicle. The end of the chrome
bumper on the right is pulled away backwards from the body of the car
causing an 80degrees bend in the bumper about one-third of its length from
the off-side. This can only have been caused by some part (probably the front
bumper) of the Land Rover catching under the chrome bumper and
rebounding to drag the bumper away from the car. In my view it would have
been possible for the defendant's Land- Rover to have caused this damage in
accordance with the plaintiff's version of the accident. The Land - Rover was
endeavouring to pass the plaintiff's vehicle at a speed greater than that of the
plaintiff, which according to him was 40 k.p.h., and abruptly had to pull in
behind the plaintiff 's vehicle when another car was approaching. In these
circumstances the driver of the Land - Rover would have had to reduce his
speed abruptly

p208

and may well have skidded thereby losing control which resulted in what the
learned trial judge referred to as "an agile manoeuvre". On the other hand, had
the accident occurred in accordance with the defendant's version, the
plaintiff's car, having skidded backwards into the defendant's stationary Land -
Rover, would have had to rebound back towards the direction of Kitwe in
order to cause the sharp bend in the plaintiff's chrome bumper. If the vehicle
rebounded away from the Land - Rover all forward momentum would have
been lost and it would have been at least most unlikely for plaintiff's vehicle
to have finished with its front nearer to Ndola than the front of the defendant's
Land - Rover, as it was found immediately after the accident. This final
position of the vehicles would not however have been impossible according to
the plaintiff's version, with two vehicles completely out of control careering
from one side of the road to the other. On the photographic evidence,
therefore, I must disagree with the learned trial judge and would find that the
plaintiff's version of the accident was the more probable.
 401

In conclusion, I find that the learned trial judge misdirected himself on the
facts of this case, and that he should on the evidence have found in favour of
the plaintiff. I would therefore allow the appeal and enter judgment for the
plaintiff for damages to be assessed by the District Registrar and with costs in
this court and the court below.

Judgment

SILUNGWE, C.J.: I concur.

Judgment

GARDNER, J.S.: I also concur.

Appeal allowed

AUGUSTINE KAPEMBWA v DANNY MAIMBOLWA AND

ATTORNEY-GENERAL (1981) Z.R. 127 (S.C.)

SUPREME COURT
GARDNER, AG. D.C.J., BRUCE-LYLE JS AND CULLINAN, AG. J.S.
11TH MARCH, 1980 AND 10TH MARCH, 1981
(S.C.Z. JUDGMENT NO. 4 OF 1981)

Flynote

Evidence - Material evidence - Motor accident - Necessity to put before court

all material evidence
Civil procedure - Pleadings - Reference to evidence not pleaded - Proper
course to take
Civil procedure - Adjournment - Necessity to grant to enable party to produce
material evidence in motor accident cases.
Civil procedure - Appeal - Finding on facts - When Appellate court can
interfere with finding.
Damages - Appeal - Likelihood of appeal - Necessity for trial court to assess
even where claim dismissed.
Damages - Loss of use of property - Assessment of damages.
Damages - Personal injuries - Injury to skull, rib, knee and tooth - Quantum

Headnote

This was an appeal by the plaintiff against a judgment of the High Court
dismissing his claim for damages for negligence against the defendants. The
 402

claim was based on a motor accident in which his vanette was so badly
damaged that it had to be sold as a write-off.During the trial a sketch plan
was never produced on objection by counsel for the plaintiff that it had not
been disclosed on discovery. Counsel for the plaintiff objected to the second
defendant's allegation that the first defendant was dazzled because the
plaintiff had not dipped his lights since this was not pleaded. He contended
that since this allegation was only raised during his final submission it should
be excluded. In commenting on his apparent acceptance of this evidence the
Commissioner said that this evidence had not been challenged. However the
Supreme Court decided to interfere with the Commissioner's findings on the
facts on the ground that the reason given for arriving at that conclusion were
not supported by the evidence on record.

As regards the damages claimed, the Commissioner made no assessment

because the claim was dismissed. The plaintiff had claimed damages for the
loss of use of his car, special damages and damages for injury to his skull,
rib, knee and tooth.

Held:

(i) When a case concerns a motor accident, all possible material

evidence should be put before the court and in a case where the
material evidence had not been disclosed on discovery, the court
should offer an adjournment, if counsel has been taken by surprise,
the costs to be paid by the defendant and then allow the production
of this evidence.

(ii) 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
against the defendant and where it is necessary to cross-
examine a witness on this issue, it is for the party affected to apply to
recall the witness to rebut the unexpected evidence.

(iii) Where a defence not pleaded is let in evidence and not objected
to by the other side, the rule is not one that excludes from
consideration of the court the relevant subject matter for decision
simply on the ground that it had not been pleaded. It leaves the party
in mercy and the court will deal with him as is just.

(iv) The appellate court would be slow to interefere with a finding of

fact made by a trial court, which has the opportunity and advantage
 403

of seeing and hearing the witnesses but in discounting such evidence

the following principles should be followed: That:

"(a) by reason of some non-direction or mis-direction or

otherwise the judge erred in accepting the evidence which
he did accept; or

(b) in assessing and evaluating the evidence the judge has

taken into account some matter which he ought not to
have taken into account, or failed to take into account
some matter which he ought to have taken into account;
or

(c) it unmistakably appears from the evidence itself, or from

the unsatisfactory reasons given by the judge for
accepting it, that he cannot have taken proper advantage
of his having seen and heard the witnesses; or

(d) in so far as the judge has relied on manner and

demeanour, there are other circumstances which
indicate
that the evidence of the witnesses which he accepted is
not
credible, as for instance, where those witnesses have on
some collateral matter deliberately given an untrue
answer."

(v) Where there is a likelihood of an appeal it is proper for a trial

court to assess the damages which would have been awarded had
judgment been found in favour of the plaintiff.

(v) A person whose car is so damaged that it is beyond repair

cannot
claim loss of use forever, and in default of any other evidence it
is quite impossible for any court to make an assessment of
damages.

(vi) Where a man is deprived of the use of his property by the

wrongful act of another, a claim for damages may be sustained
and damages in such a case are real and not merely
nominal even though no actual pecuniary loss is proved.

(viii) A sum of K500 was awarded for personal injuries.

Cases cited:
(1) Jere v Shamayuwa & Attorney-General (1978) Z.R. 204.
 404

(2) Re Robinson Settlement, Grant v Hobbs (1912) 1 Ch. D. 728.

(3) Waghorn v Geo. Wimpey & Co. Ltd., [1969] 1 W.L.R. 1764.
(4) Nkhata & Ors v Attorney-General (1966) Z.R. 124.
(5) Mbavu, & Ors v The People (1963-64) Z. & N.R.L.R. 164.
(6) Mediana (Owners) v Comet (Owners) The Mediana, [1900-1903] All E.R.
126
(7) Sharod v Bowles 1974 C.L.Y. 906.
(8) United Bus Co. of Zambia Ltd. v Shanzi (1977) Z.R. 397.

For the appellant: L. P. Mwanawasa, Mwanawasa & Co.

For the respondent: A. S. Masiye, State Advocate.

_________________________________________
Judgment

GARDNER, AG. D.C.J.:

This is an appeal by the appellant (to whom I shall refer hereafter as the
plaintiff) against a judgment of the High Court dismissing a claim for
damages for negligence against the first and second respondents (to whom I
shall refer as the first and second defendants respectively).

p130

The plaintiff signed judgment in default of appearance against the first

defendant and the trial was between the plaintiff and the second defendant
sued as representative of the Government of the Republic of Zambia, the
employers of the first defendant.

The facts of the case as adduced by the evidence were that the plaintiff was
driving along Kawama Road in Ndola in the direction of Chifubu and the first
defendant, who was a soldier in the Zambia National Defence Force, was
driving an Army Land - Rover in the opposite direction. On the plaintiff's left
there was what was described as a bus terminal, that is a lay-by at the side of
the road where buses parked. Shortly after the plaintiff passed this bus
terminal there was a collision between the Land - Rover driven by the first
defendant and the vanette driven by the plaintiff, as a result of which the
plaintiff's vanette was so badly damaged that it had to be sold as a write-off,
and he suffered some injuries, though fortunately not serious.

The plaintiff in his evidence said that he passed a bus which was parked at the
bus terminal off the road and he then saw a motor vehicle coming from the
opposite direction. The time was 1915 hours. The other motor vehicle left its
correct side of the road and came towards the plaintiff's side hitting his vehicle
and continuing so that it landed in a ditch which was on the plaintiff's side of
 405

the road. The second witness for the plaintiff, Henry Tembo, a salesman, said
that he had known the plaintiff for a number of years, and on the night in
question he received information as a result of which he went to the scene of
the accident. He found the two vehicles on the left-hand side of the road
facing Chifubu, and he said that the Army vehicle was in the ditch whilst the
plaintiff's vehicle was facing away from the road. He confirmed that the bus
terminal was approximately forty yards away. In cross-examination he said
that he saw pieces of broken glass almost in the middle of the road but on the
left side of the middle line facing Chifubu.

The first defendant gave evidence that he was driving along the Kawama
Road away from Chifubu, and before he reached a bus terminal on the other
side of the road he saw a vanette, which was coming in the opposite direction,
overtake a stationary bus. The lights of the vehicle dazzled him. There was a
ditch on his left and he swerved towards the middle of the road. The other
vehicle was still coming so he decided to stop and he did not know what
happened next. In cross-examination he said that he did not lose control of his
vehicle but he did not know where he was going because he was dazzled. He
also said that the front part of the bus at the terminal was in the road. The
defence called one witness, Inspector Wiseman Kalonga of the Zambia Police,
who said that he went to the scene of the accident at 2000 hours and found the
Army vehicle was off the road and the vanette belonging to the plaintiff was
on the road. He observed broken glass almost on the centre of the road but he
did not say on which side of the centre line the glass was found. He reasoned
that this was the point of impact. This witness said that he had prepared a
sketch plan and was prepared to produce it in court, but Mr

p131

Mwanawasa for the plaintiff objected that it had not been disclosed on
discovery. The court upheld the objection and the sketch plan was never
produced to the court. We should mention here that, as we have said many
times in the past, when a case concerns a motor accident all possible material
evidence should be put before the court, and in this 5 case the proper course,
after Mr Mwanawasa's objection, would have been to offer him an
adjournment if he was taken by surprise, the costs to be paid by the defendant,
and then to allow the sketch plan to be produced.

The learned trial Commissioner in his judgment said:

"If as suggested by the plaintiff that defendant left his side of the road
then I fail to understand how the point of impact could have been in the
middle of the road. Moreover, the defence evidence that the defendant was
dazzled by the plaintiff's headlights has not been challenged and that is why
he had to swerve to the middle of the road. Of course it can be argued
that if the driver is dazzled the proper course to take is to stop. However, the
 406

mere fact that one fails to stop when dazzled does not necessarily mean
negligence, it depends on the facts of each case. In my view, when the driver
swerved he was merely trying to avoid a head on collision and his action
would have been taken by any driver in the defendant's situation. The
evidence of the point of impact does not conclusively indicate on which side
of the road the defendant's car was when the collision occurred."

The learned trial Commissioner then found that the plaintiff had not adduced
enough evidence to show that the collision occurred because of the
defendant's negligent driving and he dismissed the plaintiff's claim.

On behalf of the plaintiff Mr Mwanawasa argued before this court that, in his
defence, the second defendant had not pleaded the allegation that the first
defendant was dazzled because the plaintiff had not dipped his lights. He
argued that he had raised this matter in his final submission to the trial court
and that the evidence as to being dazzled by lights should be excluded. He
cited the case of Jere v Shamayuwa and Attorney-General (1), in which, at
page 206, Bruce - Lyle, J.S., quoting from Re Robinson Settlement, Grant v
Hobbs (2), and commenting on a situation where a defence not pleaded is let
in by evidence and not objected to by the other side said:

"The rule is not one that excludes from the consideration of the court the
relevant subject matter for decision simply on the ground that it is not pleaded.
It leaves the party in mercy and the court will deal with him as is just."

This conclusion was criticised by Mr Mwanawasa, and this court was referred
to a number of cases in which the absence of pleadings were fatal to a
plaintiff's case. In particular, we were referred to the case of Waghorn v Geo.
Wimpey & Co. Ltd. (3), in which Lane, J., held that where a plaintiff's version
of the facts was not just a variation of the pleadings but was something new,
separate and distinct and not merely a technicality, there had been so radical a
departure from the pleaded case as

p132

to disentitle the plaintiff to succeed. I have considered the application of that

case to the case at present before this court and note that the facts of that case
were that the plaintiff first of all claimed that an earth bank near which a
caravan was parked was unsafe and this had caused him to slip. In his
evidence the plaintiff said that in fact he slipped on a path on the other side of
the caravan. In considering whether this was a new allegation or a mere
variation of the original pleading the learned judge had this to say at p. 1771:

"One must test the plaintiff's submissions in this way: If these allegations
had been made upon the pleadings in the first place, namely allegations based
upon the facts as they have now emerged, would the defendants' preparation
 407

of the case, and conduct of the trial, have been any different? The answer to
that is undoubtedly 'Yes'. Evidence would have been sought as to the safety of
the pathway alongside the caravan . . ."

In my view, the Waghorn case (3) is distinguishable from the present one in
that the answer to the question put by Lane, J., would undoubtedly be "No".
No evidence other than that of the plaintiff himself could have been led to
support an allegation one way or the other as to whether he had failed to dip
his headlights, and the plaintiff's conduct of his case could have been no
different. In my view, the proper course for the plaintiff's advocate to have
taken would have been to object immediately to the first defendant's reference
to his being dazzled. Thereupon it would be the duty of the court to decide
whether or not it was necessary to grant an adjournment to the plaintiff, and
whether to allow an amendment of the pleadings subject to an order for costs
against the defendant. Mr Mwanawasa also argued that, as the plaintiff was
not cross-examined as to the dipping of his headlights, this is another reason
for excluding the evidence of the first defendant about this aspect of the
matter. The proper course for the plaintiff's advocate to have taken in the
circumstances was to apply to recall the plaintiff to rebut the unexpected
evidence of the first defendant. This course was not taken and, in my view, the
evidence was let in and fell for consideration under the principles set out by
Bruce - Lyle, J.S., in the Jere case (1). The matter does not stop there
however. In considering the credibility of the witnesses the learned trial
Commissioner should have taken into account the fact that the alleged
dazzling not having been pleaded, and the plaintiff not having been cross-
examined thereon, it was apparent that the first defendant had never referred
to this allegation before when he must have been interviewed by the State
Advocate. The learned trial Commissioner should have taken this into account
when assessing the credibility of the first defendant. When cross-examined the
first defendant said that he had seen the bus before the plaintiff's vehicle came
on the scene. Having regard to the act that the accident occurred some forty to
sixty yards from the bus it is difficult to believe that the plaintiff's vehicle was
not already at the scene when the first defendant first saw the bus. That being
the case, if the lights of the plaintiff's vehicle were not dipped and the first
defendant was so dazzled that he did not know where he was going he would
not have been able to see the bus and

p133

recognise it as a bus. It must be borne in mind that, after the accident, the first
defendant said that he was unconscious and that he did not recover
consciousness until he found himself in hospital, so he could not have seen the
bus after the accident.

In commenting on his apparent acceptance of the first defendant's evidence as

to being dazzled, the learned trial Commissioner said that the evidence in this
 408

respect had not been challenged. This was a misdirection on the facts. The
record clearly shows that there was cross-examination of the first defendant
about his being dazzled. In all the circumstances, although this court is slow to
interfere with a finding of fact made by a trial court, which has the
opportunity and advantage of seeing and hearing the witnesses, I am quite
satisfied that this is a case where the finding as to the credibility of first
defendant should be discounted. In discounting such evidence I follow the
principles set out in the case of Nkhata and Others v The Attorney-General
(4), where, at p. 125, the court of Appeal said:

"A trial judge sitting alone without a jury can only be reversed on fact
when it is positively demonstrated to the appellate court that:

(a) by reason of some non-direction or mis-direction or otherwise the

judge erred in accepting the evidence which he did accept; or
(b) in assessing and evaluating the evidence the judge has taken into
account some matter which he ought not to have taken into account, or failed
to take into account some matter which he ought to have taken into account;
or
(c) it unmistakably appears from the evidence itself, or from the
unsatisfactory reasons given by the judge for accepting it, that he cannot have
taken proper advantage of his having seen and heard the witnesses; or
(d) in so far as the judge has relied on manner and demeanour, there
are other circumstances which indicate that the evidence of the witnesses
which he accepted is not credible, as for instance, where those witnesses have
on some collateral matter deliberately given an untrue answer."

These principles extend the three similar principles set out by Blagden, J.A, in
the case of Mbavu and Others v The People (5), at p.169.

As to the main issue on appeal as to whether the plaintiff adduced enough

evidence to show the collision occurred because of the first defendant's
negligent driving, the reasons given by the learned trial Commissioner for his
arriving at this conclusion are not supported by the evidence on record. It is
not pleaded nor does any of the evidence suggest that the plaintiff was
anywhere but on his correct side of the road. The learned trial Commissioner
however founded that the first defendant

p134

acted reasonably when he swerved towards the middle of the road in order to
avoid a head-on collision. This conclusion cannot be supported at all. Even if
the first defendant had been dazzled in which event the question of
contributory negligence might arise, it cannot be said that it was the action of
a prudent driver to swerve to his right into the path of an oncoming vehicle on
 409

its correct side of the road. As I have said, I would reject the evidence of the
first defendant as to his being dazzled.

The learned trial Commissioner finally misdirected himself when he said the
point of impact does not conclusively indicate on which side of the road the
defendant's vehicle was when the collission occurred. In arriving at this
finding he completely ignored the evidence of PW2 that he found broken
glass, which would indicate a point of impact, almost in the middle of the road
but on the plaintiff's side of the middle line. The defendant's witness also said
that the glass was almost on the centre of the road but was not asked on which
side of the centre line it lay. In the circumstances, the evidence most definitely
indicated that the point of impact was on the plaintiff's correct side of the
road. I have no hesitation in finding that the first defendant's conduct in
swerving to the right, to the wrong side of the road from his point of view,
was not that of a prudent driver, and that the evidence clearly indicates the
negligence of the first defendant. In view of the fact that I have indicated that I
would reject the evidence of the first defendant's being dazzled, there is no
question of contributory negligence on the part of the plaintiff and I would
allow this appeal and give judgment for the plaintiff.

I now come to the question of damages. As has been said in the past, when
there is a likelihood of an appeal, it is proper for a trial court to assess the
damages which would have been awarded had judgment been found in favour
of the plaintiff. This was not done in this case and it therefore falls for this
court either to send the case back to the Registrar of the High Court for an
assessment of damages, or make the assessment itself from the facts adduced
in the record. The plaintiff gave evidence that he purchased his vehicle in
1972 for K1,200, that it was in good running order up to the time of the
collision, that he had hoped to sell it for K1,150 in 1974, and in view of the
fact that the vehicle was irreparable he had to sell it as scrap for K200. No
documentary evidence or independent assessor's evidence was brought to
substantiate this claim by the plaintiff, and in the normal course of events his
claim in respect of this damage would be dismissed or sent to the District
Registrar for a assessment after hearing further evidence. However, it is
appreciated that a long time has elapsed since the vehicle was available for
inspection after the accident, and without in any way intending to set a
precedent for relaxing the usual rule that detailed evidence must be given in
support of such special damages, I feel that in equity, the plaintiff should not
be deprived of such damages as can be assessed from the evidence which has
already been given and not discredited. There is no reason to disbelieve the
plaintiff when he said that he purchased the vehicle for K1,200 in 1972, and
although he had used the vehicle for

p135
 410

two years before the accident, in which case in the ordinary way it should
have depreciated, I would take judicial notice of the fact that, in this country,
in view of the shortage of new motor vehicles, second-hand vehicles have in
fact appreciated in value. The plaintiffs estimate of K1, 150 as the value that
he would have hoped to have received must be compared with an estimate of
K450 which he hoped to receive for the vehicle when he sold it as scrap. In
fact he only received K200 for the vehicle in this condition. Doing the best I
call therefore on the evidence available, I would value the vehicle at the time
of the accident At K1,000, deduct from that sum of K200 obtained by selling
the vehicle as scrap, leaving a balance of K800, which I would award to the
plaintiff under this head.

The learned State Advocate at the trial agreed with the second two items of
special damages, that was the cost of towing a motor vehicle K10, and taxi to
hospital K15 making the total of special damages K825.

The plaintiff further claimed damages for loss of use of his vehicle and said
that he started spending K20 per month in January 1977 when one of his
children went to Form I, and continued to spend money on transport for four
children. In view of the fact that the plaintiff's vehicle was beyond repair there
was no question of assessing damages for a period whilst it was being
repaired. There was no evidence that no similar car was available immediately
to replace the plaintiff's vehicle, and no evidence on which any court could
ascertain whether or not the plaintiff did anything to mitigate his damages
under this head. It is quite obvious that a person whose car is so damaged that
it is beyond repair cannot claim loss of use forever, and in default of any other
evidence it is quite impossible for any court to make an assessment of
damages. Under this head I would award nominal damages of K10 under the
principle set out in the case of Mediana (Owners) v Comet (Owners). The
Mediana (6), that is to say, that where a man is deprived of the use of his
property by the wrongful act of another a claim for damages may be sustained
and damages in such a case are real and not merely nominal even though no
actual pecuniary lose is proved. In awarding the nominal sum to which I have
referred I am assuming that it would have taken some time - I cannot hazard a
guess as to what length of time - for another similar vehicle to be found on the
second-hand market.

As to general damages the plaintiff called a doctor who gave evidence that the
plaintiff suffered a lacerated wound on the left parietal area of the skull about
one inch in length and skin-deep; another laceration of the lower rib and left
knee; a fracture of the fourth rib, one tooth had fallen out and two others were
broken, and the plaintiff was treated as an out-patient at the hospital from the
2nd of June (the day of the accident) until the 10th of June, 1974. The doctor
gave as his opinion that the plaintiff must have been feeling pain while eating
for the first five to six days and pain for a few days because of the broken rib
which had healed. In a cross-examination the doctor agreed that the injuries
 411

were minor. Mr Mwanawasa referred the trial court to a number of cases

dealing with

p136

similar injuries, and in particular the case of Sharod v Bowles (7). Having
considered these cases and others I would award as general damages for
personal injuries the sum of K500.

I would allow this appeal, set aside the judgment of the learned High Court
Commissioner, and award to the plaintiff a sum of K825 special damages and
K510 general damages, being K500 for personal injuries and K10 for loss of
use.

Following the principles set out in the case of The United Bus Co. of Zambia
Ltd. v Shanzi (8), at p. 421, I would award interest at the rate of seven per cent
on the general damages of K510 from the date of service of the writ to the
date of this judgment, and interest at the rate of three-and-a-half per cent on
the special damages of K825 from the date of the accident (the 2nd of June,
1974,) to date of this judgment.

Costs should follow the event, that is to say, the second respondent is to pay
the costs in this court and the court below.

Judgment
BRUCE-LYLE, J.S.: I concur.

Judgment
CULLINAN, J.S.: I also concur.

Appeal allowed
 412

ZAMBIA ELECTRICITY SUPPLY CORPORATION LIMITED v

REDLINES HAULAGE LIMITED (1990 - 1992) Z.R. 170 (S.C.)

SUPREME COURT
GARDNER, SAKALA AND LAWRENCE, JJ.S.
2ND JUNE, 1992 AND 16TH JULY, 1992
(S.C.Z .JUDGMENT NO. 10 OF 1992)

Flynote

Tort - Negligence - Defences of 'act of God' inevitable accident, latent

defect, res ipsa loquitur - meaning of.
Evidence - Burden of proof - Defences of 'act of God,' inevitable accident,
latent defect, res ipsa loquitur - Effect on burden.
Civil procedure - Pleadings - Defective pleadings - Failure to object to
evidence of unpleaded issues - Effect of.

Headnote

A water tank belonging to the appellants became detached while proceeding

along the Great East Road. In order to avoid the tank and because of traffic
in the outer lane the respondent's driver swerved his truck and trailer to the
right and collided with an oncoming bus. The trial Court found as a fact that
the appellants had been negligent and were responsible for the collision and
damages were awarded against them. On appeal, the appellants raised
 413

several defences which boiled down to a claim that the accident occurred in
circumstances beyond their control.

Held:

(i) The facts of the case do not disclose nor were within the means
of the defence of act of God, inevitable accident, latent defect and res
ipsa loquitur.

(ii) Once the defences of act of God, inevitable accident, latent defect
and res ipsa loquitur were raised, then the burden shifted to the
appellants to produce proof thereof.

(iii) Failure to object to the admission of evidence of issues which

were not pleaded may lead to consideration of such evidence.

Cases referred to:

(1) Kenmuir v Hatting (1974) Z.R. 162.
(2) Deutsch, Darling and Banda v Zambia Engineering and Construction Co.
Ltd. (1969) Z.R. 161.
(3) Richie v Western Scottish Motor Traction Co Ltd (1935) S.L.T. 13.
(4) Henderson v Jenkins [1969] 1 All E.R. 401; reserved [1969] 3 All E.R.
756.
(5) Jere v Shamayuwa and Another (1978) Z.R. 204.

For the appellant: G.M. Zulu, ZESCO Legal Counsel.

For the respondent: L. Nyembele, Ellis and Co.

Judgment

LAWRENCE, J.S.: delivered the judgment of the Court.

This is an appeal against the decision of a High Court judge allowing the
Redlines Haulage Ltd. claim for damages arising out of a motor vehicle
accident. For convenience in this judgment we shall refer to the Zambia
Electricity Supply Corporation Limited as the defendants and Redlines
Haulage Limited as the plaintiffs which they were in the Court below.

The facts of the case were relatively simple. On 4th March, 1984 at about
18:30 hours the plaintiff's driver (PW1) was driving a truck and trailer, laden
with maize, along the Great East Road from Chipata to Lusaka. As he
approached the University of Zambia Great East Road Campus (UNZA) he
was travelling along the inner lane of the road and immediately to his left was
another truck going in the same direction. As it was dusk the lights of his
truck were on but dimmed. Other vehicles also travelling from the opposite
direction had their dim lights on. On approaching the UNZA junction he
 414

began to descent when he was suddenly confronted by a water tank on an unlit

trailer moving towards him in the middle of the lane in which he was
travelling. He attempted to brake but because of the load the truck could not
stop within a short distance and, fearing a collision with the truck on his left
and in order to avoid this sudden obstruction, he swerved to his right where he
collided with an oncoming bus which had been travelling only on parking
lights.

The evidence from the defendant's driver (DW1) was that he had been
travelling along this same road going in the opposite direction when some
distance past the UNZA junction another motorist indicated to him that the
water tank had become detached from his truck. He looked back and saw the
tank which was on a trailer with two wheels moving along behind him. He
stopped and parked his truck about 150 m away near the Munali service
station junction. When he looked back again he saw that there had been a
collision between a truck and a bus. He said, under cross-examination, that he
did not know what caused the collision between the two vehicles as he was
concentrating on parking his truck.

On the evidence before him the judge found that the accident was caused by
the presence of the water tank and its trailer on the road and further found that
PW1 was in no way negligent when he swerved to his right to avoid the
sudden obstruction in front of him. Mr Zulu, for the defendants, put forward
length written arguments and also made verbal submissions. The gist of the
first ground put forward was that the accident occurred not because of the
presence of the tank on the road, but because PW1 was negligent in failing to
stop or attempting to swerve to his left instead of swerving to the right as he
did, when PW 1 must have known that there were oncoming vehicles. In
support of this argument Mr Zulu referred to the evidence of DW1 who said
that the plaintiff's driver had been driving very fast at the time of the collision.
This evidence was, however, rightly not accepted by the trial Court for the
very cogent reason that DW1, on his own admission, was concentrating on
parking his vehicle after another motorist indicated to him that his water tank
had detached from his truck. In these circumstances the trial Court was at
liberty on a balance of probabilities to reject that evidence and to prefer the
evidence of PW1.

Secondly, learned counsel for the defendants attacked the learned trial judge's
findings on this issue of credibility on the basis that PW's evidence was
contradictory and his evidence that the water tank was mobile at the time he
saw it should not have been accepted. This argument clearly cannot be
sustained in view of PW's evidence that when he looked back he saw the
water tank 'moving on its own'. In any event learned counsel did concede that
the presence of the water tank caused the collision between the truck and the
bus when PW1 swerved to his right to avoid the water tank which obstructed
his path. The learned trial judge found that PW1 was not negligent in his
 415

driving as he swerved to avoid the tank and accepted that the reason PW1
swerved to his right was because of the presence of another truck to his
immediate left. These were findings of fact with which this Court cannot
interfere unless it is otherwise clearly shown that the trial judge had fallen into
error - (See Kenmuir v Hatting [1]. We cannot find that this was the case
here. This ground of appeal must, therefore, fail.

The third ground of appeal advanced by Mr Zulu was that the presence of the
tank on the road was an 'act of God', and not due to the negligence of the
defendant who had taken all precautions to secure the tank. We find this
argument somewhat difficult to follow in the circumstances of this case.
Jowitt's Dictionary of English Law 2nd ed. vol .1 defines 'act of God' as

''An event which happens independently of human action, such as death

from natural causes, storm, earthquake etc. which no human foresight or skill
could reasonably be expected to anticipate.''

This means an act of God is a catastrophe which could not be avoided by any
precaution whatsoever and must be distinguished from the defence of
'inevitable accident' which is defined in Osborne's Concise Law Dictionary
7th ed as:

''An accident the consequences of which were not intended and could not
have been foreseen by the exercise of reasonable care and skill.''

In the former defence the human element of reasonable care and skill is not
contemplated whereas in the latter the defence can only succeed if it is shown
that reasonable care and skill had been exercised to avoid the accident. In any
event a reliance on any of these defences places the burden of proof on the
defendant and not on the plaintiff. They apply for instance when the plaintiff
has shown that the mere fact that the accident occurred makes it more
probable that the defendant was negligent; that is, when the doctrine of 'res
ipsa loquitur' is evoked, a doctrine about which Magnus, J., in Deutsch,
Darling and Banda v Zambia Engineering and Construction Co. Ltd. [2], a
case where the defendant pleaded 'inevitable accident' claiming that a broken
bolt on the steering column had caused the accident, said (quoting the authors
of Clark and Lindsell on Torts 12th ed.):

''Clark and Lindsell say that it is only a convenient label to apply to a set
of circumstances in which a plaintiff proves a case so as to call for a rebuttal
from the defendant without having to allege and prove any specific act or
omission on the part of the defendant. He merely proves a result, not any
particular act or omission producing the result.''

The plaintiff need only prove that the accident happened and that it would
probably not have happened if the defendant did not bring the obstruction onto
 416

the road. The onus then shifts to the defendant who must then rebut the
probability. Magnus, J. went on to say:

''If that makes it more probable than not that the accident was caused by
the negligence of the defendant the doctrine res ipsa loquitur is said to apply
and the plaintiff will be entitled to succeed unless the defendant by his
evidence rebuts the probability.''

The authors of Clark and Lindsell at page 796 also have this to say:

''The doctrine applies (1) when the thing that inflicted the damage was
under the sole management and control of the defendant, someone for whom
he is responsible or whom he has a right to control; (2) the occurrence is such
that it would not have happened without negligence. If these two conditions
are satisfied it follows on a balance of probability that the defendant, or the
person for whom he is responsible, must have been negligent. There is,
however, a further negative condition: (3) there must be no evidence as to why
or how the occurrence took place. If there is, then appeal to res ipsa loquitur is
inappropriate for the question of the defendant's negligence must be
determined on that evidence.''

In the present case PW1 was suddenly confronted by an unlit and

uncontrollable mobile water tank in the middle of the road which caused him
to swerve and collide with another vehicle. There was at the time no apparent
reason for the water tank to be on road and it follows, as Magnus, J. said in
Deutsch [2] above:

''. . . at that stage it certainly seems to me clear that the plaintiff is entitled
to rely on the doctrine of res ipsa loquitur.''

The defendant's only explanation was that the tank became detached from the
truck. No evidence was called to say why this was so. The onus to show that
this was 'inevitable accident' remained on the defendants throughout. DW1's
simple statement that the 'tank got cut off', no matter whether used in the
context of 'breaking off' on becoming uncoupled from the truck, was totally
inadequate to shift the burden back to plaintiffs. The Court cannot be expected
to speculate as to what caused the break or the uncoupling.

p174

Mr Zulu's emphasis on the word 'got out of' seems to us to be an attempt to

say that a latent defect in the chain or mechanism connecting the tank to the
truck caused the chain or mechanism to break. Even if latent defect was the
intended defence the onus was still on the defendant to show this by expert or
other evidence. In Richie v Western Scottish Motor Traction Co. Ltd. [3] a
 417

case also referred to in Deutsch, Darling and Banda [2], Mackay had this to
say:

''If latent defect is the nature of the defence, then it is inherent in the word
''latent'' that the defender prove by this evidence that the defect . . . was truly
'latent' - that is, not discoverable by reasonable care.''

To put it in the words of Sachs, J. in Henderson v Jenkins [4] (a case also

referred to in Deutsch by Magnus, J.):

''This is one of those relatively rare cases where the incidence of burden of
proof is of importance not only at the opening of the trial but also at the end of
the day. For the ultimate decision falls to be made in the light of many facts,
knowledge of which is solely vested in the defendant . . .''

In the event we find that on the issue of liability the defendant's appeal cannot
succeed.

On the question of the plaintiff to plead negligence we agree with learned

counsel for the defence that it is important for litigants to follow the rules of
pleadings and in certain cases failure to do so may prove fatal to one's case.
Mr Nyembele for the plaintiffs concedes this but argued that when evidence
on negligence was being led by the plaintiff at first instance the defendants
should have objected and that once the evidence was let in the judge was not
precluded from considering that evidence. To support this argument Mr
Nyembele referred us to the case of Jere v Shamayuwa and Another [5] where
this Court held:

''Where a defence not pleaded is let in by evidence and not objected to by

the other side, the Court is not precluded from considering it.''

We are in agreement with Mr Nyembele, for even in the face of these

defective pleadings the issues here were never in doubt. However, this does
not mean that we condone in any way shoddy and incomplete pleadings. For
the above reasons this ground of appeal must also fail.

Lastly, Mr Zulu argued that the learned trial judge erred in law and fact in
awarding damages of K360 000 for loss of business when this was not
specifically pleaded and no details of the loss were given to enable the trial
Court to consider what loss if any was suffered by the plaintiff. This
argument is not altogether accurate. At paras. 7 and 8 of the statement of
claim the plaintiff pleaded as follows:

''7. The plaintiff now claims the sum of K95 000 being the full value of the
truck No. AAC 6231, K3 000 being the cost of damage caused to the
plaintiff's trailer No. AAB 3547T, K1 500 being costs of damage to the diesel,
 418

K600 being cost of damage to the tarpaulin and rope, K1 011 being towing
charges and K300 being the cost of removing cargo to another vehicle. The
total cost being K101 411,00.
8. The plaintiff further claims for loss of business from the time of accident
to date of settlement . . .''

p175

The plaintiffs called a Mr Agit Jashbai Patel (PW2) the managing director
who, apart from giving evidence as to the damage, said:

''I also claim for loss of business up to the time we replaced the truck, per
month we were grossing about K10 000 per month.''

This evidence was in no way challenged by the defence. The only inference
that could reasonably be drawn from the defence's failure to do so was that the
defence accepted the plaintiffs' estimate of the loss and in the circumstances
this Court is reluctant to interfere. The result is that the appeal is dismissed
with costs to the plaintiffs.

Appeal dismissed.

REMMY KABANDA KAINDU MUSHOTA v THE LAW

ASSOCIATION OF ZAMBIA (1985) Z.R. 146 (S.C.)

SUPREME COUNT
SILUNGWE, C.J., NGULUBE, D.C.J., AND GARDNER, J.S.
4TH APRIL, 1985.
(S.C.Z. JUDGMENT NO. 11 OF 1985)

Flynote

Civil Procedure - Law Association Act - Originating Summons signed by

unqualified person employed by legal practitioners - whether valid.
Civil Procedure - Law Association of Zambia - Originating summons in the
name of the Association - Whether the legal practitioners committee is
proper party to institute proceedings on behalf of the Association.
Legal Practitioners - Law Association Act - Originating summons signed by
unqualified person employed by legal practitioners whether valid.

Headnote

The Law Association of Zambia issued a writ of summons against the

defendant, a legal practitioner, applying for an order that he should deliver to
a firm of accountants his books of accounts and other documents and for an
order restraining him from paying out any money lying in his firms bank
 419

accounts. The injunction was granted and the defendant appealed. The
defendant argued that the originating summons was bad because it was
signed by an unqualified person in the employment of a firm of qualified legal
practitioners. The Association argued that s.54 of the Legal Practitioners Act
allowed an unqualified person to issue such process in the name of a qualified
practitioner. The defendant also argued that the proceedings should have
been instituted by the Legal Practitioners' Committee of the Law Association
because s.13 (7) (c) of the Law Association Act provides that the function of
the practitioners' Committee was to exercise on behalf of and in the name of
the Association, the powers confered upon the Association by s.69 of the
Legal Practitions' Act.

Held:

(i) It is a clear intention of s.54 of the Legal Practitioners' Act to

provide an exception to the prohibition in s.42 by permitting the
issue of writs by clerks or unqualified employees of practitioners
subject to the safeguards as set out in s.54 which makes it clear that
the clerk or the employee is acting on behalf of the qualified
principal.

(ii) The Legal Practitioners' Committee is expressly empowered to

take action under s.69 of the Legal Practitioners' Act and any such
action instituted by the Council is so instituted by the wrong organ of
the Association.

(iii) In this case no injustice would occur to the defendant by

allowing the Law Association of Zambia to take the appropriate
action through the appropriate committee to ratify what had already
been done in the name of the Association.

Case referred to:

(1) Bellamano v Lombarda Ltd. (1976) Z.R. 267.

Legislation referred to:

Law Association Act, Cap. 47, ss.11, 13..
Legal Practitioners' Act, Cap. 48 ss. 42, 44, 54,69.

For the appellant: In person.

For the respondent: M.M. Lwatula, of Ellis and Company.

__________________________________________
Judgment

GARDNER, J.S.: delivered the judgment of the court.

 420

This is an appeal against a ruling by judge in chambers refusing to set aside

and discharge an order and an injunction. The matter arises out of an
originating summons issued by the Law Association of Zambia to whom we
shall refer in this judgment as the Association, against Remmy Kabanda
Kaindu Mushota, to whom we shall refer as the defendant.

The Association applied for an order that the defendant should deliver to
Messrs Price Waterhouse and Company, a firm of accountants, his books of
account and other documents and an order restraining the defendants firm of
legal practitioners from paying out any money lying in the banks in the
accounts of that firm. The original interlocutory injunction was granted ex
parte, but the hearing resulting in the ruling which is now appealed against
was inter partes.

In his appeal to this court, the defendant has argued that the originating
summons was signed and issued by Mr DM Fluck, who, although employed
its clerk in the firm of Ellis and Company, Legal Practitioners, is an
unqualified person. He argued that section 42 of the Legal Practitioners' Act
(Cap.48) provides, inter alia, that no unqualified person shall issue out any
writ of summons, or similar process, and that, although section 54 of the Act
provides that nothing in the Act shall be deemed to prevent any practitioner
from employing an unqualified person to do any work on his behalf, such as
is ordinarily done by clerks or employees the issuing of legal process is not
work which can be done by an ordinary clerk and is specifically forbidden by
section 42. Section 54 provides that the work which may be done by
unqualified clerks or employees which must be done in the name of the
practitioner and all fees must be paid directly to the practitioner; that in all
cases where an unqualified person signs written document he shall, in
addition, sign his own name after the name of the practitioner, and that the
practitioner shall send to the court and the magistrate of the district wherein he
practices, the navies of unqualified persons who are authorised to do any such
work on his behalf. There was evidence that Mr Fluck's name had been sent to
the court as required by that section, and it was argued in the court below on
behalf of the Association that Mr Fluck, by signing over the name of Ellis and
Company, a firm of practitioners whose partners are legally qualified, was
doing none other than the work usually done by a clerk in such
circumstances.

p148

In considering what documents could be envisaged as being within the

permitted scope of unqualified persons, our attention was drawn to section 44
of the Act which provides that it shall be an offence for an unqualified person
to, inter alia, directly or indirectly draw or prepare any written document
relating to real or personal state or to any proceeding in law or equity, unless
he proves that the act was not done for, or in expectation of, any fee, gain or
 421

reward. It was argued by the defendant that this specifically prevented Mr

Fluck from drawing and signing the originating summons herein.

On behalf of the Association, it was argued that this section also was covered
by the saving as to the employment of unqualified persons set out in section
54.

In our view, the purpose of section 44 is to prevent unqualified persons,

acting on their own, from drawing legal documents for gain or reward, and
section 54 makes special provision for such world to be done by legal
practitioners' clerks or employees, subject to the important condition under
paragraph (a) that all fees or other reward in respect of such work shall be
paid to, and received directly by, the practitioner. In the same way, we do not
consider that section 42, which is a prohibition on any unqualified person
issuing out any summons or process, is intended to be a prohibition on the
clerks or employees referred to up section 54. The section is obviously
designed to prevent an unqualified person from holding himself out as a
qualified legal practitioner and issuing process in his own name. It is the clear
intention of section 54 to provide an exception to the prohibition is section 42
by permitting the issue of writs by clerks or employees of practitioners,
subject to the safeguard set out in section 54 which make it clear that the clerk
or the employee is acting on behalf of the qualified principal. In this case, we
are satisfied that the qualification of the practitioner covered the work done by
Mr Fluck in his capacity as clerk of that practitioner. This ground of appeal,
therefore, must fail.

The defendant indicated that he was abandoning groups two and five, and his
grounds three and four were the only ones which remained to be argued. As
they were the subject of the same argument, they were argued together for
convenience. The ground of appeal was that, although the originating
summons was properly in the name of the Law Association of Zambia, the
wrong organ of that Association had been responsible for giving instructions
for its issue. The originating summons claiming handing over of books of
account was issued under the provisions of section 69 of the Legal
Practitioners' Act, which refers to proceedings taken under the third schedule
to the Act. Under this schedule, the Association may require the production or
delivery, inter alia, of books of account to anyone nominated by it, it is further
provided that, ire the event of the person having those books of accounts
failing to hand them over, application may be made to the High Court or a
judge for on order for that person to comply with the requirements of the
Association. The defendant pointed out that the Law Association Act (Cap.
47) provided for the establishment of a Council of the Association and that
section 11

p149
 422

of the Act provides that, except as otherwise expressly provided by the Act,
the council may exercise all the powers of the Association. Section 13 of that
Act provides for the election of a Practitioner's Committee, and section 13 (7)
(c) provides that the functions of the Practitioners' Committee shall be to
exercise, on behalf of, and in the name of the Association, the powers
conferred upon the Association by section 69 of the Legal Practitioners' Act.
The defendant argued that this is an express provision and that only the Legal
Practitioners' Committee can issue legal process under subsection (c). He
maintained that, because it is an express provision it is excluded from the
general powers given to the council by section 11.

We agree with this argument and are satisfied that, because that Legal
Practitioners' Committee is expressly empowered to take action under section
69 of the Legal Practitioners' Act, any such action instituted by the Council, is
so instituted by the wrong organ of the Association. The defendant argued
that, this being the case, it was impossible for the Association, through the
Legal Practitioners' Committee, to ratify something which had been done by
an organ which was completely ultra vires the power of that organ. He argued
that the situation was different from that pertaining to a company which had
instructed solicitors to issue a writ without valid resolution by the directors of
the company authorising the solicitors to do so. We cannot agree that the
situation is any different. In any case in which legal action is taken by, or in
the name of, a party when such party has not properly given authority because
of a technical defect, such defect may always be remedied, unless, of course,
injustice would result from allowing such a remedy. In this case, no Injustice
would occur to the defendant by allowing the Law Association of Zambia to
take the appropriate action, through its appropriate committee, to ratify what
has already been done in the name of the Association. The situation which
arose in the case of Bellamano v Lombarda Limited (1976) Z.R.267 (1), is
pertinent to the facts of this case. In that case, company issued a writ but there
was no company resolution for the appointment of the plaintiff's solicitors and
the issue of the writ. An application was made to set aside that writ on the
grounds that it was issued without authority, and this Court, on appeal ordered
that the issue of the writ was irregular and that, therefore, the action should be
stayed until such time as the irregularity was cured. We propose to realm such
an order in this case. The action will be stayed on condition that it be properly
ratified within fourteen days from today, failing which the action will stand
dismissed. The injunction will continue in force for fourteen days at the end of
which period it will be discharged unless the notion will have been properly
ratified within that time.

Appeal allowed in part

 423

RURAL DEVELOPMENT CORPORATION LTD v BANK OF CREDIT

AND COMMERCE (Z) LTD (1987) Z.R. 35 (S.C.)

SUPREME COURT
CHOMBA, GARDNER AND SAKALA, JJ.S.
2ND MARCH,1987 AND 23RD APRIL, 1987.
(S.C.Z. JUDGMENT NO. 8 OF 1987)

Flynote

Civil Procedure - Caveat - Removal of - Procedure to be adopted.

Headnote

The appellant appealed against the judgment of the High Court directing
removal of a caveat entered by the appellant. The appellant argued that the
application to remove the caveat was wrongly before the court as the
respondent had commenced the action by way of an originating summons
contrary to Order 6, rule 1(3).

Held:
 424

(i) Although s. 81 of the Lands end Deeds Registry Act, Cap. 287
provides no procedure for the removal of a caveat, an originating
summons is the proper form for commencing proceedings for
removal of a caveat.

Cases cited:
(1) Chikuta v Chipata Rural Council (1974) Z.R. 241
(2) Appollo Refrigeration Services Company Ltd v Farmers House Ltd (1985)
Z.R. 182

Legislation referred to:

(1) Lands and Deeds Registry Act,-Cap. 287, s.81 (1)
(2) High Court Rules Cap. 50, Order 6, Rule 1 (13), Order 30 (1) (11).

For the appellant:. M.C.K.Banda, Banda and Associates.

For the respondent: C.B.Mwansa, Jaques and Partners.
_________________________________________
Judgment

SAKALA, J.S.: delivered the judgment of the court.

When we heard this appeal we allowed it and granted leave to the appellant to
file a memorandum of appearance and an affidavit in opposition within 30
days. We also ordered that the case be sent back before the commissioner for
hearing on the merits. We further ordered that costs be paid by the appellant to
the respondent both in this court and in the court below. We indicated then
that we would give our reasons later and this we now do.

p36

This is an appeal against a ruling of a High Court commissioner directing the

removal of a caveat entered by the appellant on 13th March 1984 at the Lands
and Deeds Registry on Farm No. 4384 situated in Mumbwa District of the
Central Province. For convenience we will refer to the appellant as the
defendant and the respondent as the plaintiff, which they were in the court
below.

By an originating summons supported by an affidavit, both filed in the

Principal Registry on 8th April,1986, The plaintiff applied for the removal of
the caveat. The hearing of the summons was set down for 18th June,1986, at
0900 hours by a notice of appointment dated 9th May,1986. From the
proceedings on record it is quite clear that counsel for the defendant was
served with the originating summons and the notice of appointment. The
defendant did not enter appearance and did not file any affidavit in opposition.
 425

The record discloses that counsel for the plaintiff presented his case. At the
end, counsel for the defendant explained the reason for not filing an affidavit
in opposition, namely that he did not receive the affidavit in support of the
summons apart from the summons itself. Counsel for the defendant then
raised a preliminary point that the court had no jurisdiction to entertain The
application on the grounds that the action was wrongly before the court and
not in conformity with the provisions of Order 6 Rule 1(3) of the High Court
Rules Cap.50, and that the plaintiff had commenced a similar action under
cause No. 1986/HP/125 before Commissioner Phiri who dismissed it for not
complying with the provisions of Order 6 of the High Court Rules, Cap.50.

Counsel for the defendant argued and submitted before the learned High Court
commissioner that the application was wrongly before the court because the
procedure for the removal of a caveat had always been by way of notice of
motion in accordance with Order 6 Rule 1(3) of the High Court Rules. He
pointed out that Section 81 (1) of the Lands and Deeds Registry Act, Cap.287
providing for the removal of a caveat did not provide the procedure to be
adopted and to the extent that that section was silent on the procedure to be
used in an application for the removal of a caveat, the only available
procedure is that provided under Order 6 Rule 1 (3) of the High Court Rules
Cap.50 namely by way of an originating notice motion.

Counsel further submitted that the plaintiff having unsuccessfully brought a

similar application by way of a summons the present application was an abuse
of process. Counsel contended that on the authority of the case of Chikuta v
Chipata Rural Council (1) non-compliance with Order 6 Rule 1 deprives the
court of jurisdiction to entertain any application wrongly commenced. He
submitted that the application must fail for procedural reasons.

Reacting to the submissions by counsel for the defendant in the court below,
counsel for the plaintiff pointed out that the defendant having not entered a
memorandum of appearance as required by law, he should not be heard and
whatever had been said on behalf of the defendant was a nullity. Conceding
that Section 81 Cap.287 provides no procedure for the removal of a caveat, he
contended that the use of the phrase in that section namely "summons the
caveator" suggests that the procedure to be adopted is that provided under
Order 6 rule 1 (2) of the High Court Rules providing for an originating
summons. He submitted that as a matter of practice

p37

caveats leave been removed by way of an application by an originating

summons. Turning to the similarity of actions counsel contended that,
although the application involved the same caveat the parties were different.
He argued that if the court found that the action had been wrongly
commenced it had power to amend the summons. For this argument counsel
 426

referred the High Court commissioner to this court's decision in the case of
Appolo Refrigeration Services Company Limited v Farmers House Limited
(2) in which an action for possession of certain business premises was
commenced by an originating notice of motion and, this court having pointed
out that an originating notice of motion was not the proper process for a
landlord claiming possession, an order was made to effect the necessary
amendment.

The learned commissioner in a detailed ruling carefully considered the

submissions by both learned counsel and held that, notwithstanding that
section 81 (1) of the Lands and Deeds Registry Act Cap.287 was silent on the
procedure to be adopted when summoning a caveator to court, the issue of
removing a caveat is one which may be disposed of in chambers in
accordance with Order 30 (11) of the High Court Rules, Cap.50 and
proceeding by way of an originating summons was a correct procedure. The
learned commissioner having inspected cause No. 1986/HP/125 observed that
the defendant in that case was different and the property was different. She
held that the action in that case having involved a different defendant and
different property was not similar. The learned commissioner, therefore,
directed that the defendant having not entered appearance and there having
been no affidavit in opposition the caveat entered by the defendant be
removed.

The defendant has appealed against that ruling to this court. On behalf of the
defendant three written grounds of appeal were filed. These are: the learned
commissioner erred in law in holding that "Notwithstanding that Section 81(1)
of Cap.287 is silent on the procedure to be adopted when summoning a
caveator to court, the subject matter of removal of a caveat is one which may
be disposed of in chambers under Order 30 Rule 11 (j) a party is, therefore, in
order to proceed by way of an originating Summons" contrary to the
provisions of Order 6 Rule 1 (3) of The High Court Rules; the judgment of the
Supreme Court in the case of Chikuta v Chipata Rural Council (1) at page 243
line 40 has a lacuna in it which ought to be cured; and ground three is that the
learned commissioner erred in law in failing to adjourn the proceedings so as
to avail the appellant an opportunity to file an affidavit in opposition in a bid
to contest the action on the merits in accordance with the provisions of Order
33 (1), alternatively Order 33 Rule 3 of the High Court Rules.

Mr Banda on behalf of the plaintiff argued and submitted that the learned trial
commissioner having rightly conceded that the Lands and Deeds Registry Act,
Cap. 287 does not provide for the procedure of summoning a caveator, she
should have then sought recourse to the High Court Rules as to the procedure
that should have been adopted in this case. He submitted that the application
should have been by way of an originating notice of motion in terms of Order
6 rule 1(3) of the High Court Rules. After Mr Banda was referred to Order 5
Rule 3 of the White Book 1985 edition under the heading "Proceedings which
 427

must be begun by originating summons", he conceded that in terms of that

order an originating summons was the proper form to commence proceedings
in the present action. Mr Banda also argued that the learned

p38

commissioner erred by failing to adjourn the case when counsel for the
defendant had made known to the court the reasons for not filing an affidavit
ire opposition namely that he was not in receipt of the affidavit in support of
the summons. Counsel contended that the court should have allowed time to
file an affidavit in opposition instead of proceeding to resolve the issue of
whether or not an affidavit in support had been served. He submitted that,
without hearing the defendant, justice was not done because the defendant was
not given an opportunity to show cause why the caveat should not be
removed. He asked the court to allow the defendant to file a memorandum of
appearance and for the matter to be sent back for re-trial while ordering the
defendant to bear the costs.

Mr Mwansa on behalf of the plaintiff at first contended that although counsel

for the defendant had conceded that an originating summons was the proper
form of commencing proceedings in this case, he objected to the request for a
re-trial, because justice must be seen to support a non-defaulting party. He
pointed out that in the instant case the appellant did not enter a memorandum
of appearance and counsel did not ask for an adjournment. However, after
further consideration he agreed, and fairly so, that justice in this matter was
not done as it was not decided on the merits, and he consented to the matter
being re-heard.

We have very carefully considered the submissions by both counsel. Mr

Banda on behalf of the defendant has properly conceded, and we agree with
him, that an originating summons is the proper form for commencing
proceedings for the removal of a caveat. This is clearly supported by the
wording of Section 81 (1) of the Lands and Deeds Registry Act which reads:

"(1) Such Registered Proprietor or other interested person may, if he

thinks fit, summon the caveator, or the person on whose behalf such caveat
has been lodged, to attend before the Court or a Judge thereof to show cause
why such caveat should not be removed."

In our view the case of Chikuta v Chipata Rural Council referred to by

counsel in the written grounds of appeal and the written heads of argument
and submissions has no relevance to the facts of the present action. That was a
case seeking a declaration by way of an originating summons that the
appellant was still employed. The facts of the case clearly showed that the
action should have been commenced by writ as it necessitated the hearing of
oral evidence in a proper trial, when usually in applications by way of
 428

originating summons the evidence is by way of affidavits. In any event Order

30 Rule 11 of the High Court Rules, Cap. 50 clearly sets out the business to
be disposed of in chambers. In addition to that business, matters which under
any other rule or by statute or by the law and practice for the time being
observed in England and applicable to Zambia, may also be disposed of in
chambers. Order 5 Rule 3 White Book (1985 edition) under the heading
"Proceedings which must be begun by originating summons" reads as follows:

"(3) Proceedings by which an application has to be made to the High court

or a judge thereof under any Act must be begun by originating summons
except where by these rules or by or under any Act the application in question
is expressly required or authorised to be made by some other means.''

p39

We are satisfied that the present proceedings having commenced by an

application to the High Court under an Act, namely the Lands and Deeds
Registry Act, Cap. 287, they had been properly commenced by an originating
summons. We are also satisfied that on account of the conduct of counsel for
the defendant in the court below in failing to enter appearance and in failing to
file an affidavit in opposition and by also failing to make a proper
application for an adjournment to enable him to enter appearance and file an
affidavit in opposition, the application was not heard on the merits. We are of
the opinion that justice in this matter can only be done by having the matter
heard on the merits. But we must observe on the other hand that, had counsel
raised his preliminary objection before counsel for the plaintiff presented his
case, the matter would have been resolved there and then, and the action
would have probably proceeded on the merits. On the other hand even if
counsel for the defendant had succeed on his preliminary point (which in our
view he could not) the court on the authority of Appollo Refrigeration
Services Company Limited v Farmers House limited (2) should only have
effected the necessary amendment and not dismissed the action. But under
Order 11 Rule 22 of the High Court Rules, Cap. 50 the defendant, having been
served with an originating summons, was required to enter an appearance
before being heard.

It was for the foregoing reasons that we allowed the appeal and ordered that
the action be re-tried on the merits by the High Court commissioner. We must
emphasise that before the defendant is heard he must first enter appearance
and file an affidavit in opposition if any.

Appeal allowed .
 429

LILY DRAKE v M.B.L. MAHTANI AND PROFESSIONAL SERVICES

LIMITED (1985) Z.R. 236 (S.C.)

SUPREME COURT
NGULUBE, D.C.J., GARDNER AND MUWO, JJ.S
11TH JUNE,1985 AND 11TH DECEMBER, 1985
(S.C.Z. JUDGMENT NO.31 OF 1985)

Flynote

Civil Procedure - Rent Act - Application for possession - Originating

Simmons - Propriety of.
Landlord and Tenant - Possession - Application for - Originating summons -
Propriety of.
Landlord and Tenant - Rent Act - Notice to quit - Requirement of premises
for landlord's wife, children or employees - Validity of notice giving no
specific reason for requirement of possession.
Landlord and Tenant - Rent Act - Premises required for employees of
landlord's group of companies - No evidence as to particular company -
Necessity for complete identity between the employer and the landlord.
 430

Landlord and Tenant - Rent Act - Protection of Tenant - True purpose of Act.

Headnote

The respondents obtained from the High Court an order for possession of a
flat let to the appellant on the grounds that the premises were required by the
landlord for occupation by the landlord's employees under s.13 (1)(e) of the
Rent Act. At the trial the Managing Director of the second respondent, who
was proved to be the owner of the premises, gave evidence that the premises
were required for occupation by unspecified employees of unspecified
companies which were members of a group of companies to which the second
respondent belonged. There was no evidence that the premises were required
for an employee or employees of the second rospondent company itself. The
action was commenced by a Writ of Summons for possession and was argued
on behalf of the tenant that it should have been commenced by originating
notice of motion. It was also argued that the notice to quit was invalid
because it did not specify the reason why the landlord required possession.
The trial judge commented adversely on the appellant's claim to the
protection of the Rent Act and referred unfavourably to her asking the Court
"to grant her the valuable status of irremovability by reason of her
inadequate income."

Held:

(i) Applications to the Court for possession of premises which were

subject of the Rent Act must be by originating summons; but it has
always been the practice of the courts to allow amendment of
proceedings which have been incorrectly commenced so long as no
injustice is done to the parties;

(ii) A notice to quit by landlord requiring possession for the reasons

set out in s.13 (1) (e) of the Rent Act need not set out such reasons;

(iii) Where premises are required by a landlord for occupation by an

employee such employee must be employed by that particular
landlord; there must be complete identity between the employer and
the landlord;

(iv) The true purpose of the Rent Act is to protect tenants, and, even
when landlord provides proof that his case comes within the
provisions of s.13 (1) (e), it is still incumbent upon him to prove that
the premises are reasonably so required.

Cases cited:
 431

(1) Appollo Refrigeration Services Company v Farmers House Ltd S.C.Z.

Judgment No.19 of 1985 (reported at p.182 of this volume)
(2) Gridmond v Duncan [1949] S.C. 195.
(3) Curl v Angelo [1948] 2 All E.R. 189.

Legislation referred to:

Rent Act, Cap. 438, s.13 (1)(e)

For the appellant: D. A. Kafunda, of Manek and Company.

For the Respondent: L. P. Mwanawasa, of Mwanawasa and Company.

__________________________________________
Judgment

GARDNER, J.S.: delivered the judgment of the court.

On the hearing of this appeal we gave judgment for the appellant and
indicated that we would give our reasons later. We now give our reasons.

This is an appeal against judgment of the High Court giving to the second
respondent an order for possession of Flat No.11 Madhur Court, Ndola.
There was evidence that in May ,1967, one L.T. Mahtani let the premises to
the appellant and after the death of Mr L.T. Mahtani the first respondent
served a notice to quit on the appellant and all the other talents on the 15th of
June, 1974, with an offer of new tenancy at increased rents. The offer of a new
tenancy was refused by the appellant but she continued to occupy the premises
under the Rent Act Cap. 438. In passing we would comment that the term
"Statutory tenant" has been criticised on the grounds that former tenant
holding over under the protection of the Rent Acts is not tenant but a person
with a personal right to continue to occupy the premises. This is a valid
criticism but no one is misled by this commonly used term and it is
appropriate in this case to say that after the first notice to quit the appellant
continued to occupy the premises a statutory tenant.

On the 6th September, 1976, a further notice to quit was served on the
appellant by the first respondent requiring her to vacate the premises and a
writ was issued by the first respondent in the High Court claiming possession
of the premises. Subsequently leave was given for an amendment of the writ
by adding the second respondent on the grounds that the premises had been
assigned by the first respondent to the second respondent on the 23rd
October, 1980.

In the Statement of Claim it was pleaded that the notice to quit was in
accordance ninth section 13 (1)(e) of the Rent Act. This section reads as
follows:
 432

"13 (1) No order for the recovery of possession of any premises or for the
ejectment of a tenant therefrom shall be made unless - (e) the dwelling-house
is reasonably required by the landlord for occupation as a residence for
himself or for his wife or minor children or for any person bonafide residing
or intending to reside with him, or for some person in his whole-time
employment or for the occupation of the person who is entitled to the
enjoyment of such dwelling-house under a will or settlement, and the landlord
has given to the tenant not less than twelve months notice to quit; and in such
case the court shall include in any order for possession a requirement that the
landlord shall not without its prior approval let the premises any part thereof
within three years after the date on which the possession is to be given."

At the trial Mr R. L. Mahtani the General Manager of the second respondent

gave evidence. In the record such evidence appears as follows:

p239

'' Q: Mr Mahtani why did you need the premises?

A: To house employees of the group companies my Lord.
Q: For the employees of the plaintiffs?
A: Yes my Lord of companies where the plaintiff have an
interest.''

The following extracts appear in the record of the cross-examination of this

witness:

''Q: You are saying that there was an assignment of this property to
Professional Services Limited?
A: That is true my Lord it was sometime in October, 1980.
Q: That was after you issued the notice to quit to the defendant?
A: That is true my Lord.
Q: Is it not true that in fact the other flats you are referring to are in
fact rented to ZCBC.
A: There is one or two flats I think rented to ZCBC on the under
standing that a group company Copper Harvest producing goods for ZCBC
but for Copper Harvest it is all within the group - group companies of
Mahtani."

After hearing the evidence the learned trial judge in his judgment said:

"The reason given by the defendant for her refusal to move is that her
income is inadequate. In other words because of her inadequate income she is
asking the court to grant her that valuable status of irremovability. That in my
view would be far-reaching. Such reason does not truly convince the court
that her contractual tenancy cannot be terminated."
 433

The learned trial judge then made an order for possession of the premises in
favour of "the plaintiff", without saying which one, and said "for these reasons
I hold that the defendant is not protected by section 13 (1)(e) of the Rent
Act." It is against that order that the appellant now appeals.

At the outset of the appeal Mr Kafunda on behalf of the appellant raised a

preliminary objection to the form of the proceedings to commence the action.
This objection was not raised before the trial in the High Court nor was it one
of the grounds of appeal in the memorandum of the appeal and the heads of
argument. However, we allowed Mr Kafunda to argue this objection and he
drew our attention to the provisions of the Rent Rules 1973 made under the
Rent Act. Rule 3 provides that a complaint or application to the court under
the Act shall be commenced by an originating notice of motion. Furthermore
Mr Kafunda pointed out that the definition in the Rent Act of "court" reads:

p240

" (a) In relation to premises for which the rent demanded exceeds
K3,600 per annum the High Court:
(b) In relation to all other premises a Subordinate Court of the first
class to be presided over by a senior resident magistrate or a resident
magistrate."

In this case the premises were let at a rental of K60.00 per month and
therefore, Mr Kafunda argued, the action should not have been commenced in
the High Court. Mr Mwanawasa on behalf of the respondent maintained that
he was not making an application under the Rent Act but was merely
claiming possession. And that Order 6 Rule 1 of the High Court Rules
provides that except as otherwise provided by any written law or by the Rules
every action in the Court shall be commenced by writ of summons.

We have compared the provisions of the Rent Act and its Rules with those of
the Landlord and Tenant (Business Premises) Act Cap.440 which are in
similar terms as to the making of applications by originating notice of motion.
As we pointed out in the case of Appollo Refrigeration Services Limited v
Farmers House Limited (1) none of the applications mentioned in the
Landlord and Tenant (Business Premises) Act provides for an application for
possession. Consequently a claim for possession of business premises must be
commenced by writ. In the Rent Act, however, sub-sections (6) and (7) of
section 13 both refer to landlords obtaining orders for possession "under this
section." The use of these latter words envisages applications for possession
under section 13 despite the fact that at first sight the section appears to be a
prohibition section and not an enabling section. In view of the fact that
applications for possession are envisaged under that section Rule 3 relates to
such applications. Consequently as that rule provides for the commencement
of applications by originating notice of motion the exception to Order 6 Rule
 434

1 applies and the matter is not to be started by writ of summons. We

appreciate that these technicalities may not always be clear and for that reason
it has always been the practice of this court to allow amendment of
proceedings which have been incorrectly commenced so long as no injustice
is done to the parties. In this case no injustice will be done to the appellant by
allowing the respondents to amend their form of action to one of originating
notice of motion. We accordingly allow such an amendment.

With regard to Mr Kafunda's argument that in any event the matter should
have been started in the Subordinate Court and not in the High Court, this is a
matter which goes only to the question of costs. The appellant was entitled to
make an application to transfer the case to the Subordinate Court if she so
desired, but the respondents must bear the consequences of their choice to
commence the proceedings in the High Court so far as costs are concerned. If
they are successful, subject to any argument as to the complexity of the case
justifying increased costs, the costs should be awarded at no more than the
Subordinate Court scale. If they are unsuccessful however, the costs should be
awarded against them on the High Court scale.

p241

The first ground of appeal put forward by Mr Kafunda was that the notice to
quit served on the 6th September, 1976 did not indicate the reasons why the
respondents required the premises, that is for occupation by their employee.
Mr Mwanawasa argued that as twelve months notice to quit was given and
sub-section (e) of section 13(1) is the only sub-section requiring twelve
months notice, it should have teen clear to the appellant what were the
grounds of the application. In view of the fact that the subsection allows a
landlord to obtain possession if the premises are reasonably required by the
landlord as a residence for himself or his wife or minor children or for an
employee, we would not agree that the giving of twelve months notice drew
the attention of the tenant to the precise reason for the landlords requirement.

However, we are satisfied that the situation is not the same as in the case of
the Landlord and Tenant (Business Premises) Act, in which a landlord
requiring possession must give a notice in the form set out under the Rules
made under that Act, which provides for the landlord to set out the grounds on
which he would oppose an application for a new tenancy. Under the Rent Act,
section 13(1) (i) is a provision enabling the landlord to obtain possession
when he requires the premises to enable reconstruction or rebuilding thereof
to be carried out. The sub-section provides that a landlord may exercise such
right when he has "given to the tenant not less than six month's notice in
writing of such requirement." Those last words are not included in section
13(1)(e). There is therefore no requirement that a landlord requiring
possession under the latter sub-section must give his reason for such
requirement and the notice to quit in this case was not ineffective by reason
 435

of the fact that no grounds were given for requiring possession. There is no
merit in the appellant's complaint about the contents of the notice to quit and
this ground of appeal must fail.

We would further point out that it is the duty of a plaintiff to indicate in his
Statement of Claim the reason for requiring possession. In this case clause 6
of the respondent's Statement of Claim reads: "the notice to quit and the
termination of the tenancy were done in accordance with section 13(1)(e) of
the Rent Act." As we have pointed out, that subsection provides for a
landlord's requiring possession for himself, his wife, his minor children or an
employee and, as drawn, the Statement of Claim gives no indication of the
precise reason for the landlords' requiring possession. This should have been
done, but as the appellant did not raise the issue the point is not material in
this case.

We come now to the argument that there was no evidence that the employees
of the second respondent were to be accommodated in the premises. The
record shows that the evidence was only that the premises were required for
employees of the respondent's group of companies. It is clear that nowhere did
the General Manager of the second respondent claim that the premises were
required for employees of his particular company, that is Professional
Services Limited. We are satisfied that the premises were assigned to the
second respondent who became the landlord for the purposes of section 13 (1)
(e). There is no

p242

doubt that the second respondent is an entirely separate legal entity from the
first respondent and it is essential, to satisfy requirements the of section 13(1)
(e) as to persons in employment, that such persons must be in the employment
of the particular landlord. In the Scottish case of Grimond v Duncan (2) under
the Rent and Mortgage Interest Restriction (Amendment) Act 1933, the
provisions of which were to all intents and purpose indentical to section 13(1)
(e) of the Rent Act, a landlord brought an action of summary ejection against
tenant. She averred that the house was reasonably required by herself and her
two sisters for occupation by a ploughman who was in the whole time
employment of herself and her two sisters. It was held in that case that the
ploughman was not in the whole-time employment of the landlord, his
engagement being either with the partnership or joint venture consisting of the
three sisters as separate individuals. We agree with the principle set out in that
case and the comment in Megarry's Rent Acts (9th Edition) at page 253:
"There must be complete identity between the employer and the landlord." In
this case therefore in order to take advantages of the provisions of section
13(1)(e) of the Rent Act, the second respondent would have had to bring
evidence that the promises were required for an employee of its own and not
 436

generally of a family group of companies. This the second respondent did not
do and there was no proof to satisfy the provisions of section 13(1)(e).

There were further arguments by both parties concerning the intention of the
legislature as to the interests of landlords and tenants. In this connection the
learned trial judge said that the appellant was asking the court to grant her the
valuable status of irremovability by reason of her inadequate income. The
learned trial judge commented adversely on this claim and it appears that he
did not appreciate the true purpose of the Rent Acts - that is to protect
tenants. As Lord Green M.R. said in the case of Curl v Angela (3). The "real
fundamental object" of the Acts is "protecting the tenant from being turned
out of his home." We agree with that dictum and we would emphasise that,
even when a landlord provides proof that his case comes within the provisions
of section 13(1)(e), it is still incumbent upon him to prove that the premises
are reasonably so required.

For the reasons we have given we allowed this appeal.

Mr Mwanawasa argued that the appellant has not succeeded on any of the
grounds put forward on her behalf and should therefore not be entitled to
costs. It is correct to say that the question as to proof that the premises were
required for an employee of the landlord was raised by this court and not by
the appellant's counsel but in our view that is not a sufficient reason for
depriving the successful appellant of her costs. Accordingly we order that the
costs both in this court and in the court below shall be the appellant's.

Appeal allowed

APPOLLO REFRIGERATION SERVICES CO. LTD v FARMERS

HOUSE LTD (1985) Z.R. 182 (S.C.)

SUPREME COURT
NGULUBE, D.C.J., GARDNER AND MOWO, JJ.S.
5TH JULY,1985
(S.C.Z. JUDGMENT NO.19 OF 1985)

Flynote

Landlord and Tenant - Action - Commencement of Landlord's action for

possession - Business premises - Originating notice of motion
inappropriate.
Landlord and Tenant - Notice to quit - Business premises - Landlord relying
on notice to quit served by previous landlord.

Headnote
 437

A landlord of business premises commenced an action to recover possession

by originating notice of motion thinking that every action between a landlord
and tenant of business premises had to be commenced in that fashion by
virtue of the Landlord and Tenant (Business Premises) Act and the Rules
thereunder. The landlord also relied on a notice to quit served by the previous
landlord.

Held:

(i) An originating notice of motion was not the proper process for a
landlord's claim for possession of business premises since all the
applications which can be made by an originating notice of motion
under the Landlord and Tenant (Business Premises) Act are
specified in the various sections. A Landlord's action for possession
was not so specified and should therefore be commenced by writ in
accordance with Order 6 of the High Court Rules;

(ii) Notice to quit given by a previous landlord was available to a

new landlord who had similar intentionof redeveloping the property
and such new landlord could resist a request for a new tenancy on
the same ground as the previous landlord.

Case cited:
(1) A.D.Wimbush and Son Ltd. v Ranmills Properties Ltd. and Others
[1961] 2 All E.R.197.

Legislation referred to:

High Court Rules, Cap. 50, 0.6.

For the appellant: A.M. Musanya, of Zambezi Chambers.

For the respondent: M.Lwatula, of Ellis and Company.
__________________________________________
Judgment

NGULUBE, D.C.J.: delivered the judgment of the court.

This is an appeal by a tenant against a judgment of the High Court which

allowed the respondent's claim, as Landlord, for possession of certain
business premises occupied by the appellant.

The action in the High Court was commenced by an originating notice of

motion and the first point which Mr Musanya has taken up is that such a
procedure was wrong and the action was, therefore, not properly before the
High Court. He relies on Order 6 of the High Court Rules and submits that the
action commenced by the respondent was not such application as is referred to
 438

in the Landlord and Tenant (Business Premises) Act, Cap.440 and the rules
made thereunder. Mr Lwatula, for the landlord, concedes this argument and
has indicated that he was under the impression that every action between a
landlord and a tenant of business premises had to be commenced in that
fashion. He has applied to this court to grant the necessary amendments to
rectify the proceedings, pointing out that no prejudice can result to the
appellant since both parties had every opportunity to be heard on the merits.
We agree with the submission by Mr Musanya that an originating notice of
motion was not the proper process for a landlord claim for possession since all
the applications which can be made under the Act are infact specified in the
various sections. A landlord's action for possession is not so specified and the
action should, therefore, have been commenced as provided for by Order 6 of
the High Court Rules. With regard to the application for the necessary
amendments to be made, we agree that, for the reasons given by Mr Lwatula,
this is a proper case in which to order that the amendments be effected, as
prayed, and it is hereby so ordered.

Mr Musanya in his second ground of appeal argued that the learned trial
commissioner erred in holding that the respondent could rely on notice to quit
which the previous landlord had served on the appellant. He is not able to cite
any authority but nevertheless contends that the respondent should not have
relied on a notice served by the previous owners of the property. In fairness,
we should record that Mr Musanya eventually accepted that, since the new
landlord took the property subject to the tenancies, he also took all the
advantages including any notices already given by the previous landlord. In
any case, there is authority in support of the proposition to which we have
made reference, namely, that notice to quit given by a previous landlord is
available to a new landlord who has similar intentions of redeveloping the
property - which was the ground upon which the notice was given in this case
and such new landlord can resist a request for new tenancy on the same
ground as the previous landlord. We refer to A.D. Wimbush and Son Limited
v Franmills Properties Limited and Others (1).

The third ground of appeal alleged that the learned trial commissioner had
misdirected himself by his failure to hear viva voce evidence in this case,
which failure resulted in prejudice to the appellant. The alleged proposed
evidence consisted of facts stated by counsel for the respondent in his
submissions, and which amounted to evidence, to which objection was
successfully taken by counsel for the appellant. It is quite clear that there was
no such evidence relevant to the issues before the court. Again in fairness to
Mr Musanya, we should record that he has in any case abandoned this
argument. There was a further point which Mr Musanya raised in his
submissions concerning the alleged lack of proof of the fact that the landlord
did require the premises for the purpose of redevelopment. Once again this
ground was not proceeded with and Mr Musanya quite properly conceded that
 439

there was no dispute in this regard. Indeed the landlord's basic claim in the
action was never at any stage challenged by the appellant.

For the reasons which we have given it is quite clear that there are no grounds
upon which we can possibly interfere with the decision of the learned trail
commissioner. The appeal is accordingly dismissed.

Mr Musanya submitted that, in the event of this court finding against him, the
appellant should be given sufficient time to find alternative accommodation.
Mr Lwatula has quite fairly indicated that this would be a proper course for
us to take. We observe that the appellant has had, since these and other
previous proceedings, over three years in which to make alternative
arrangement. However, in all the circumstances and having regard to the
matters which were submitted to us, we feel that the respondent should not be
able to obtain possession for a further period of three months from today's
date. We accordingly order a stay of execution of the respondent's judgment
for possession of the said property for three months.

With regard to the question of costs, it is to be observed that we have had to

grant an application by the respondent to amend the proceedings. The
alternative order, had we not taken that course, would have been to require the
respondent to commence the action all over again. For this reason, and in
fairness to both parties, we feel that there should be no order as to costs. In
other words each party will bear its own costs of this appeal.

Appeal allowed in part

IN THE MATTER OF NKAKA CHISANDA PUTA AND IN THE

MATTER OF THE CONSTITUTION OF ZAMBIA ACT No. 27 OF
1973 AND IN THE MATTER OF THE PRESERVATION OF PUBLIC
SECURITY ACT CAP. 106 OF THE REVISED EDITION OF THE
LAWS OF ZAMBIA (1982) Z.R. 80 (H.C.)

HIGH COURT
SAKALA, J.
4TH DECEMBER, 1981
(1981/HN/774) 10

Flynote

Civil procedure - Declaration - Jurisdiction - Whether court has powers to

hear a petition for damages brought under Statutory Instrument No.156 of
1969 in accordance with Art. 29 of the Constitution.
Constitutional law - Detention - Damages - When awarded.
 440

Constitutional law - Detention - Preservation of Public Security Relations -

Whether lawfully constituted.
Constitutional law - Detention - When detainee to be weighed - When solitary
confinement - Whether mandatory for a police detention order to be written -
How detailed.
Constitutional law - Detention - Whether contravened Art. 15 (3) of the
Constitution - When grounds to be served.

Headnote

The petitioner brought an action in accordance with Art. 29 of the

Constitution for: a declaration that his detention was unlawful, an award of
damages for inhuman treatment while under detention and compensation for
wrongful arrest and unlawful detention. He was first detained on 2nd July,
1981, and taken from his home in Ndola to Kabwata Police Station. On 4th
July, 1981, he was taken to Lilayi Police Camp for interrogation. Two days
later he was moved to Lusaka Central Police Station where he remained until
he was transferred to Kabwe Maximum Security Prison on 9th July, 1981,
and served with the first detention order under regulation 33 (6) of the
Preservation of Public Security Regulations. He was again taken back to
Lilayi Camp where he was finally examined by a doctor and treated. Although
he was served with the grounds of detention on 28th July, 1981, and had his
detention gazetted on 7th August, 1981, he was not weighed until 20th August,
1981. The petitioner alleged that during his detention he was ill treated,
subjected to solitary confinement and denied legal representation, and that
his detention contravened Art. 15 (3) of the Constitution.

Held:

(i) The High Court under Art. 29 (2) and (8) of the Constitution has
original jurisdiction to hear an application by way of petition (other
means are provided by the High Court regulations) and make such
order, issue such writs and give such directions as considered
appropriate for enforcing Arts. 13 to 27 of the Constitution.

(ii) Under Art. 29 (8) no court can award damages against the
Republic in respect of anything done under or in execution of
detention order signed by the President unless the award arises out
of physical or mental ill treatment or mistake of identity of the
detainee.

(iii) A detainee must be weighed immediately on being put into

detention.
 441

(iv) A police detention order need not be written as in the case of

Presidential Order.

(iv) Solitary confinement may be construed in the context of the

facilities available in place so that non-entitlement to mix with
fellow detainees is not necessarily such confinement.

(v) The petitioner's detention was deemed to be lawful since the

Preservation of Public Security Regulations under which he was
detained were:

(a) observed with regard to the rules on supplying grounds; and

(b) legally constituted by the Governor under powers as contained in
the Preservation of Public Security Ordinance, number 5 of
1960, ss. 3 and 4.

(vi) Determination as to whether a detention is reasonably justifiable

is a privilege of the detaining authority.

(vii) A detainee who is not charged with a criminal offence does not come
under Art. 15 (3) (b) of the Constitution and the authorities are not
bound to bring him before a court.

Cases cited:
(1) A.-G. v Valentine Shula Musakanya (1981) Z.R. 1.
(2) Chikuta v Chipata Rural Council (1974) Z.R. 241.
(3) Kapwepwe, Kaenga v A.-G. (1972) Z.R. 248.
(4) Mungabangaba v A.-G. 1981/HN/403.
(5) Munalula and Ors v A.-G. (1979) Z.R. 154.
(6) Re Thomas James Cain (1974) Z.R. 71.
(7) Shamwana v A.-G. S.C.Z. Judgment No. 35 of 1980.
(8) Sharma v A.-G. (1978) Z.R. 163.
(9) Valentine Sheila Musakanya v A.-G. S.C.Z. Judgment No. 18 of 1981.

Legislation referred to:

Constitution of Zambia, Cap. 1, Arts. 15 (3), 27 (1) (a), 29 (1), (2) (a), (8).
High Court Rules, Cap. 50, O. 6, rr. 1(1), 2.

p82

Interpretation and General Provisions Act, Cap. 2, s. 35 (a).

Preservation of Public Security Ordinance, No.5 of 1960, ss. 3 (1), (2), (3), 4
(1), (2), 6.
Preservation of Public Security Regulations, Cap. 106, regs. 33 (1) (6).
Preservation of Public Security (Detained Persons) Regulations, Cap. 106,
regs. 20(1) (a),(b).
 442

Protection of Fundamental Rights Rules, Statutory Instrument No. 156 of

1969.

For the petitioner: A. R. Lawrence, Solly Patel, Hamir and Lawrence and C.A.
Stacey, Lloyd Jones and Collins.
For the respondent: A. G. Kinariwala, Senior State Advocate.
_______________________________________________
Judgment

SAKALA, J.:

This is an application by way of petition brought in terms of the Protection of

Fundamental Rights Rules of 1969 made under Statutory Instrument No.156
in accordance with s.28 now art. 29 of the Constitutions of Zambia. The
petitioner seeks the following prayers from this court.

"1. That his detention be declared unlawful and that he be released on

the grounds that -

(i) the purported grounds of detention were not served upon

him as soon as was reasonably practicable nor in compliance with art. 27 (1)
(a) of the Constitution;
(ii) apart from being untrue the grounds of detention are not
detailed enough to comply with the provisions of Art. 27 (1) (a) of the
Constitution of Zambia;
(iii) the Provisions of Art. 15 (3) of the Constitution of Zambia
are being contravened by his continued detention:
(iv) he is being unlawfully confined.

1. (a) That the detention was not reasonably justifiable, and both
detention orders exceeded anything which could reasonably; have been
sought to be required (as per amendment).
2. That he be awarded damages for the inhuman treatment
complained of.
3. That he be compensated in damages for wrongful arrest and
unlawful detention."

The petitioner is a Zambian citizen. He is an advocate of the High Court and a

partner in the firm of Messrs Lloyd Jones and Collins, 1st Floor, Permanent
House, President Avenue, Ndola. He ordinarily resides at Flat Number 3,
Lufapa, Dolphin Court, Nkana Road, Ndola. On the 2nd July, 1981, at about
1100 hours he was approached by uniformed and plain-clothes policemen
who produced to him a search warrant signed by a magistrate. The officers
searched the petitioner's office and home. After the search he was taken to
Ndola Central Police Station where he was informed that he would be taken to
 443

Lusaka to help the police with investigations and that he would be back in
Ndola shortly. The petitioner

p83

voluntarily accompanied the authorities. They arrived in Lusaka at about 2030

hours. He was taken to Lilayi Police Training School and later to Kabwata
Police Station where he stayed up to 1700 hours; on the 4th July, 1981, when
he was taken to Lilayi. On the 6th July, at about 1600 hours he was taken to
Lusaka Central Police Station where he remained until he was transferred to
Kabwe Maximum Security Prison on the 9th July, 1981. On the 9th July,
1981, he was served with a detention order made under reg. 33 (6) of the
Preservation of Public Security Regulations. On the 15th July, 1981, the
detention order of 9th July, was revoked. The petitioner was removed from
Kabwe Maximum Security Prison and taken back to Lilayi prison. On the
27th July, 1981, he was examined by an army doctor who prescribed some
medicines. On the 28th July, he was served with grounds of detention relating
to the detention order made under reg. 33 (1) of the Preservation of Public
Security Regulations. On the 7th August, 1981, the petitioner's detention was
gazetted in the Government gazette. The petitioner was not weighed until the
20th August, 1981.

In his petition the petitioner has alleged that while at Kabwata Police Station
he slept in a cell with one other person without any bed. He has further alleged
that while at Kabwata Police Station he was not allowed to send any
messages out or make any phone calls. He was not provided with food until
the following day at lunch time. He further alleges that it was very cold; he
had to use a door mat made out of sisal as a blanket. Later in the night of the
next day he alleges that he was joined by about a dozen people arrested for all
sorts of offences. The petitioner also alleges that while at Lilayi he was
interrogated and the interrogation was coupled with threats and actual torture
which resulted in bruises and cuts as well as swollen glands. The
interrogation, according to the petitioner proceeded intermittently for three
days during which time he was informed that while there he had no rights to
legal representations. The petitioner states that while at Lusaka Central Police
Station he spent the nights of 6th and 7th July, 1981, in a crowded cell with
urine on the floor. A relation provided him with two covers. He states that
despite his several requests for a doctor from the time he was beaten at Lilayi
it was not until the 11th July, that he was examined by doctor. The petitioner
also states that when he was removed from Kabwe Maximum Security Prison
on the 27th July, 1981, he was taken to Lilayi Prison where he was kept in
solitary confinement although he had not committed any of the scheduled
offences.

The petitioner adduced oral evidence and filed three affidavits. The
petitioner's oral evidence is substantially a repetition of the contents of his
 444

petition. This evidence is on record. Very briefly, he testified that during the
search at his office, the police opened the filing cabinet and took out two files
relating to the cases of Messrs Valentine Musakanya and Patrick Chisanga, his
clients who had been detained. He stated that from the file of Mr Musakanya
the police collected a statement from another of his client Mr Goodwin
Mumba. During the search at his flat he stated that the police were particularly
interested in a chapter from a manuscript from the book he was writing on
Constitutional Law and

p84

politics in Zambia. One chapter of that book related to the Presidential and
General Elections of 1978. The officers took copies of a newsletter called
Africa Confidential.. They also took some notes. He stated that while at the
office the officers scrutinised his diary. He said one of the officers who went
through the diary stopped at one page and was particularly interested in the
entries made on the 22nd May, 1981. He explained that subsequently he was
served with grounds of detention which cited the 22nd May, as the day on
which he had a meeting with Mr Pretorius. He stated that he did not meet Mr
Pretorius on the 22nd May, but on the 22nd May, he had a woman client
known as Mrs Gay Pretorius for whom he acted in a divorce matter in which
Johannes Lodewikud Pretorius was the respondent. He explained that there
was no connection between the Pretorius of 22nd May, and the Pretorius
mentioned in the grounds of detention apart from the names. The petitioner
testified that he had no objection to accompany officers to Lusaka since they
had told him that he was returning soon. On arrival in Lusaka he was driven to
Lilayi where he was asked to remain in the car. Few minutes later he was
taken to Kabwata Police Station at about 2130 hours. At Kabwata he was
taken to a cell where an officer on duty informed him that he was not allowed
to have a blanket. He slept on the floor without any cover. On the 3rd July, he
went to the reception where he again requested for a blanket. He was again
informed that he was not allowed to use a blanket. At that time he noticed an
entry in the register against his name stating that he was not allowed to see
anybody and that he was being detained for his own protection. On the
second evening he used a door mat as a cover as it was chilly in Lusaka at that
time. He testified that most of the time he was alone in the cells but about
mid-night a bunch of people were brought in largely for loitering. On the
following day at about 1600 hours he was taken to Lilayi. On the way to
Lilayi he was informed that he was not directly involved in what the police
were investigating but they thought he could be useful in giving them
information relating to some people. He was also informed than it would be
better if he co-operated with them because if he did not he would stay in
detention for ever and they would instruct the judiciary not to release him. The
petitioner further stated that the officer taking him to Lilayi told him that they
control the judiciary. To prove this the officer cited the case of Kaenga saying
that the reason Kaenga had been released was that they had informed the
 445

judiciary that Mr Kaenga had been co-operative. On arrival at Lilayi, he was

placed in a hall with a mattress referred to as the interrogation room. The
room is not part of the prison. At 2000 hours the interrogation commenced.
He was asked to give his life history which he did. He was asked about Mr
Hamaundu, a lawyer at one time his colleague on the Law Association Human
Rights Sub - Committee. He was also asked about Mr Pretorius and how long
he had known him. He told them that he had known him for about four to five
years. This is the Pretorius not his client. He said the last he heard of him was
that he had been detained at maximum prison in Kabwe. He was also asked
about Kapotwe. After asking questions about Ms Pretorius, Hamaundu and
Kapotwe they moved to ask him on Mr Musakanya, his client. They wanted to
know what instructions Mr Musakanya, had given him in connection with the

p85

alleged coup attempt of October, 1980. He gave them two reasons why it was
impossible for him to talk about Mr Musakanya's instructions relating to
treason charges. The first reason was that what Mr Musakanya said was
privileged and that he had no sufficient time to discuss charges with him as he
concerned himself largely with the civil action in the habeas corpus and
petition. The petitioner explained that at a later stage the team leader by name
of Capt. Katambi joined and said "all that you had said is rubbish". The
petitioner states that the team leader went on to say that all lawyers were
going to be wiped out. He said an officer by the name of Mbulo asked him
how his father died. He explained that his father died from a stroke.
According to the petitioner this was followed by laughter around the table.
The officer by the name of Mbulo reminded him that Kapwepwe too died
from a stroke and he, the petitioner will die from a stroke unless he co-
operated with them. The petitioner said Capt. Katambi stated that the next
time Mr Mansoor, once a lawyer for Mr Shamwana, comes to Zambia they
would cut off his balls. Capt. Katambi then asked him whether he had been
out of Zambia. He told him that he had been to Swaziland and had stopped
over in Salisbury to collect a parcel from the Milners. Mbulo suggested that
the reason he had gone to Salisbury was to deliver a message from Musakanya
to Milner outlining the plan for the coup. The petitioner stated that the
interrogation was at night. There were about nine officers around the table
initially, later they conducted the interrogation in teams of two or three. By
midnight all the people there had left apart from Mbulo's team which
consisted of two people. At that time Mbulo did all the questioning. He again
asked about Musakanya and Milner and on one occasion about General
Kabwe. According to the petitioner Mbulo expressed himself dissatisfied with
his answers. He requested him to stand up and asked him to take off his
clothes. He asked him to do twenty press-ups. He did them but he did not do
the last properly; as a punishment he was ordered to do another ten.
Thereafter the petitioner states that Mbulo made comment about his being
physically fit. He was allowed to put on his clothes and the interrogations
 446

proceeded. He testified that on the first night of the interrogations he went to

bed at about three or four hours. No prison warder was present during the
interrogation; the following day the pattern followed the same as the previous
day. The interrogation started at 1030 hours. About 0100 hours in the morning
Mbulo's team arrived; Mr Mbulo's colleague who said nothing the previous
night said he was going to take over the show; he told him to strip again. He
took a large stick about half an inch thick. He worked himself up into a rage
claiming that he had kept him all night when he wanted to be with his wife
instead of interrogating him. The petitioner stated that this officer took a big
stick and hit him twice or three times on the face. The petitioner stated that he
suffered injuries on the back and face and the glands were swollen. He had
heavy sores in the back and he was bleeding. Mr Mbulo complained that if he
did not co-operate he would get him beaten and nobody would know. They
recorded statements which he was asked to sign. He did not read all of them.
He said he was not very clear of the events of that night as he was bleeding
and he was a bit faint. He explained that at Lilayi he was fed and at Kabwata
he was fed one meal. He said he had requested

p86

for legal representation in the very beginning, but Capt. Katambi told him not
to be stupid and think as a lawyer as in that room he had no right. He said at
that time the person who had driven him from Kabwata Police Station told
him that it was that kind of behaviour that was going to make them exercise
their authority to remove one of the eyes. He went to bed on that day at 0530
hours in the morning. He was not given any treatment, for his injuries. He said
when he arrived at Lusaka Central Police Station on the 9th July, the first
thing he did was to request for medical aid but the duty officer told him that
he would attend to it the following day: he reminded him the following day,
he promised for another day. This went on until the 9th July, when he was
taken to Kabwe Maximum Prison. He said on the 9th July, an officer came to
him and asked if he had a detention order, he told him that, he did not have
one and the officer went out and prepared one for transfer. He said he
complained to his lawyer and the officer-in-charge at Maximum Prison in
Kabwe and to few relatives who had visited him who actually saw the injuries.
In the van transporting him to Kabwe Maximum Prison there were other two
detainees who asked him about how he got the sores on the face. He stated
that at Mukobeko he was put in a cell with two other detainees who saw his
injuries. One of the detainees was Harry Mkandawire while the other was
Maxwell Mukumbuta. He requested for medical treatment at Mukobeko. On
the 11th July, he was examined by a doctor who stated that he was physically
and mentally fit. He requested for a private medical practitioner but he was
told that it was not allowed. The petitioner also told the court that while at
Lilayi, he was put in the prisoner's section in a room on his own where he was
told not to communicate with anybody, but he was allowed out for thirty
minutes twice a day; this was increased to an hour. He regarded this to be
 447

solitary confinement. He told the court that as a lawyer he was aware that to
be in solitary confinement one must have breached some regulations. The
petitioner explained that he was served with the grounds of detention on the
28th July. On receipt of the grounds he felt it was impossible to make
representations, firstly he stated that as regards 22nd May, he never met Mr
Pretorius and as regards the month of April he went to London on the night of
16th and returned on the 4th May.

In cross-examination, the petitioner stated that Mr Musakanya is his relative.

He is married to his mother's cousin but, Mr Chisanga is not his relation.
Suffice to mention that much of the cross-examination which is also quite
detailed was a repetition of the evidence in chief. The petitioner however
explained in cross-examination that on arrival at Lusaka Central Police Station
the officer who received him saw his injuries and asked the other police
officers not to lock him up but to keep him outside the cell as he would
suffocate inside the cell. The petitioner stated he stayed outside in the
reception until it was time to go to bed. He said when he was brought back
from Kabwe to Lusaka he was detained at Lilayi in the prisoner's section
where he was kept in a room which was quite clean. There was a bed and
mattress, a chest of drawers, a window, two blankets and two bed-sheets. He
was allowed to read newspapers and he was allowed exercises for thirty
minutes a day. He was also allowed two

p87

visitors every Wednesday. The petitioner further stated in cross-examination

that he did not understand the grounds of detention. They did not make sense
to him. Firstly because the alleged conversation between him and Hamaundu
did not take place so it is impossible for him to understand the allegations. He
stated that he was not in a habit to understand things that did not make sense.

PW2, testified that he was detained on the 23rd June, 1981. Prior to 9th July,
he was at Lusaka Central Prison. On the 9th July, he was transferred to Kabwe
Maximum Prison; on that day he met the petitioner in the van. There was also
another detainee by the name of Mr Mukumbuta . He testified that he saw the
petitioner bleeding with a deep cut right under the nose. The wound was
looking fresh. He asked the petitioner what was wrong with him, the petitioner
informed him that he had been beaten at Lilayi. At that time it was the only
injury he saw but the petitioner told him that he had plenty more at the back.
He saw the injuries at the back at Kabwe Maximum Prison when they were
sleeping together in one cell.

In cross-examination this witness explained that he is detained because he is

alleged to have arranged with a certain warrant officer by the name of
Chawinga to procure arms from the defence force for use in the rescue
operation.
 448

PW3 testified that on the 22nd May, 1981, he was in London. In cross-
examination he testified that he was away from the 22nd May, to the 7th June.

Gay Pretorius deposed in her affidavit that the petitioner acted as her advocate
in a divorce cause No.1979/HN/D/40 in the High Court at Ndola. She
confirmed that among other days she consulted the petitioner on Friday the
22nd May, 1981, at 1500 hours and that she is the Mrs Pretorius referred to in
the diary of the petitioner. She states that she had never met Johannes
Lodwikus Pretorius and that he is in no way connected with her.

Ronald Christopher Chansa, a mayor in the Army, presently detained at

Lusaka Remand Prison deposed to the circumstances that led to his detention
and the various interviews he had with the police and the treatment he
received at the hands of the police. He further deposed that during one of the
interviews he was asked whether he knew the petitioner and when he last saw
him. He stated that he told the police that he knew the petitioner. He last met
him at the end of 1980. He said that this was the only time that he was
questioned about the petitioner.

The third affidavit on behalf of the petitioner was sworn by one George
Kapotwe presently detained in Mumbwa. Paragraphs (4) and (5) of that
affidavit read as follows:

"(4) That one of the grounds on which I am detained is that on or about

the 25th day of May, 1981, at your office situated at Mazembe Tractor,
Lusaka, you were approached by a whiteman who introduced himself to you
as a Mr Willem Johannes Pretorius,

p88

and who told you had been sent by Nkaka Puta of Ndola and that you were
later contacted by Nkaka Puta by telephone, who asked you to introduce the
said Pretorius to Geoffrey Hamaundu. Subsequently, meeting between the
said Pretorius, the said Hamaundu and yourself was arranged at Ridgeway
Hotel, Lusaka where you introduced the said Pretorius to the said Hamaundu
and at which meeting the exchange rate of 75,000.00 US Dollars to Zambia
Kwacha was fixed at 1.00 U.S. to Zambia Kwacha 1.00. (5) That as will be
seen from the said ground of detention Mr Puta the petitioner herein nor
myself were aware of the reasons why Willem Johannes Pretorius and
Geoffrey Hamaundu wanted to allegedly exchange US Dollars for Zambian
Kwacha."

The respondent adduced evidence from six witnesses. DW1 testified that from
early July to early October, 1981, he was stationed at Lilayi. He knew the
 449

petitioner who was detained at Lilayi from 22nd July, to 24th September,
1981. He stated that the accommodation at Lilayi consists of rooms intended
for senior officers on training. Each room consists of a bed and mattress, built
in wardrobe, wash basin and a tap and also a chest of drawers. Each detainee
is given two bed-sheets and two blankets. He explained that the detainees
were allowed two visitors once a week. They were allowed exercises in the
morning for a period of thirty minutes to one hour and also in the afternoon.
The detainee's visitors could bring them any necessity they required. They
were allowed to write letters and receive letters. They were also allowed to see
lawyers. He said the petitioner enjoyed all these privileges. He testified that
the petitioner was in room to himself like all the other detainees. They had
instruction that the detainees should not mix as investigations were still going
on. He told the court that it was true that Mr Puta was weighed on the 20th
August, 1981. He explained that this is because Lilayi being a new prison did
not have a scale.

In cross-examination he explained that from the 2nd July, to the 12th July, he
was not at Lilayi and he was not present when the petitioner was brought. He
told the court that the petitioner arrived at Lilayi from Kabwe on the 22nd
July, 1981. He complained to him later that he was sick and a doctor was
brought on the 27th July. The witness explained that the letters written by the
detainee were censored. He denied that he censored one of the petitioner's
letters because in it he had used the words solitary confinement. He stated that
as far as he was concerned the petitioner was not in solitary confinement, but
in a room to himself.

DW2, a Senior Superintendent stationed at Lusaka Division CID, testified that

the petitioner was arrested on the 2nd July and was served with a detention
order on the 9th July. He explained that the delay in serving the order was on
account that he was under the impression that he had been served with police
detention order by Ndola Police but on making inquiries he realised that the
Ndola Police had not served the petitioner with the detention order as a result
he made the police detention order himself on the 9th July. This witness also
explained that the

p89

petitioner was arrested and detained under reg. 33 (6) of the Preservation of
Public Security Regulations.

In cross-examination he testified that he was not the officer-in-charge of the

interrogations but he was the one who gave the order for the arrest of the
petitioner but he did not send the detention order. He said between the 2nd
and 8th July, he saw the petitioner once when he was at Lusaka Central Police
Station. At that time the petitioner's mother and sister had come to visit him.
According to this witness the petitioner looked normal. He told the court that
 450

the interrogations were conducted by combined efforts involving army and

Zambia Intelligence Service and the police. Inspector Phiri was present at all
the investigations.

DW3 told the court that the petitioner was brought to Kabwata Police Station
on the 2nd July, 1981, by Capt. Shambane at 1600 hours. He said the
petitioner spent the nights of the 2nd, 3rd and 4th at Kabwata Police Station.
He told the court that at Kabwata Police Station, the cells are divided into
two. One is female section and the other male; on the day the petitioner was
brought there was one female prisoner and the petitioner. In each cell there
were two blankets. According to this witness the petitioner was provided food
by Capt. Shambane.

In cross-examination the witness testified that the petitioner was brought to

Kabwata Police Station after 1600 hours. This witness was recalled later. On
being recalled he told the court that according to the occurrence book the
petitioner was brought to the station at 2130 hours. He stated that the
following day there were quite a few people in the cell and there were still two
blankets. The daily occurrence book at Kabwata Police Station was produced
in this court and marked exhibit "D1".

DW4, Capt. Katambi, an officer in the Zambia Army testified that it could not
be true that he questioned the petitioner but it could be true that he attended
the interview where the petitioner was questioned. He denied threatening the
petitioner during the interview. He further stated that he was merely in
attendance at the time the petitioner was being questioned. He did not himself
ask any questions. He could not remember the day of the interview but
explained that he was summoned by his immediate boss to report to Lilayi
where he was told that the petitioner was being interviewed by the police. His
instruction was to go and listen to the interviews with a view to finding out as
to whether the petitioner's involvement was similar to that of other detainees
of trying to bring arms into the country. He said his role was only to go and
find out whether the petitioner's involvement had to do with the procuring of
arms. He said he was driven to Lilayi at about 1000 hours. He left around
1500 hours as he had to take his child to the hospital.

In cross-examination he stated that the only reason he went to Lilayi was to sit
and listen. According to this witness in cross-examination the interrogation
was done only by the police. He said he did not ask the petitioner any
questions during the five hours he stayed at the interview because the
petitioner did not talk about arms but had he talked about

p90

arms he was going to ask him some questions. He could not know the names
of the officers who were questioning the petitioner. He denied refusing the
 451

petitioner legal representation. He denied telling the petitioner that he had told
him rubbish. He also denied talking to the petitioner about how his father
died. He also denied asking the petitioner how Kapwepwe died. He stated that
he never opened his mouth in the interrogation room for the five hours he
strayed there.

DW5 testified that on the 29th June, 1981, he was instructed to search the
house of Mr Johannes Pretorius. He went to the house situated at Plot No.774
Chingola East. During the search he recovered a passport number P408779
in the name of Johannes Pretorius. He explained that according to the passport
Mr Pretorius left Zambia on the 21st May and landed at Gatwick on the 22nd
May, 1981. He also stated that the passport showed that he returned to Zambia
on the 2nd June. The witness produced in this court the passport in question
which was marked exhibit "D2".

DW6 testified that he is a psychologist. He knows the petitioner's family, but

did not know the petitioner as Puta. He explained that he knows the Puta
family because they come from Nkula Village in Chinsali. He further
explained that he met the petitioner at Lilayi Training School sometime in
July, on a date he could not remember. He was instructed to go and collect the
petitioner's personal data. He said when he met him he greeted him and
interviewed him. He was in a group of some Police officers. The Police
officers were questioning him. He was interested in the report. He said they
talked to the petitioner for about four to five hours from 1400 hours to 1800
hours with intervals. He denied threatening the petitioner during questioning.
He said he was not aware that the petitioner was beaten. He denied asking the
petitioner to do press-ups. He further denied torturing, the petitioner.

In cross-examination the witness testified that he did not know who was in
charge of the team. He said he did not know whether Capt. Katambi was in
charge of the interviewing team. He explained that he has a Masters Degree
from Tennessee State University in the USA. He also told the court that there
was no specific person who instructed him to collect the petitioner's data. He
stated that he was not present when the petitioner was asked to do press-ups.

In addition to the oral evidence the respondent also filed an affidavit in

opposition sworn by one Amos Phiri, a Detective Inspector in the Zambia
Police, stationed at Divisional Headquarters, Lusaka. In his affidavit he
deposed that he was one of the Officers who interrogated Ronald Christopher
Chansa. The officer in his affidavit denied all the allegations contained in the
affidavit sworn by Mr Chansa.

The foregoing was the evidence in this petition. At the end of the evidence
both learned counsel made submissions.
 452

Before the hearing of the petition commenced, Mr Kinariwala raised a

preliminary issue. The preliminary issue raised was that this court has no
jurisdiction to make a declaration that the petitioner's

p91

detention is unlawful based on the grounds set out in the prayers of the
petition that-

"(i) The purported grounds of detention were not served upon him as
soon as was reasonably practicable nor in compliance with Art. 27 (1) (a) of
the Constitution;
(ii) Apart from being untrue the grounds of detention are not detailed
enough to comply with the Provisions of Art. 27 (1) (a) of the Constitution of
Zambia;
(iii) He is being unlawfully confined as stated in para. 14 hereof -

(2) That he be awarded damages for the inhuman treatment

complained of.
(3) That he be compensated in damages for wrongful arrest, unlawful
detention and given such other redress as this Honourable Court may consider
fit for the deprivation of his constitutional rights."

I deferred my ruling on the preliminary issue as I considered it not to go to the

root of the petition particularly, that even if the ruling was in for of the State
the hearing of the petition would still have continued on the other prayers. Mr
Kinariwala submitted that the relief being sought by the petitioner cannot be
granted by way of a petition. He contended that the proper procedure which
the petitioner should have followed was to commence the proceedings by way
of a writ as per 0.6, r. 1 of the High Court Rules. In this way, he submitted, the
petitioner would have properly claimed for damages. He further submitted
that there is no provision in the Constitution whereby a person can claim
damages for unlawful detention or for assault and inhuman treatment by
adopting a procedure which is not permissible by law. He submitted that the
court had no jurisdiction to grant the relief claimed because the proceedings
were not properly before the court. In support of his submissions, he cited the
case of Chikuta v Chipata Rural Council (1) in which the Supreme Court held
that there is no case in the High Court where there is a choice between
commencing an action by a writ of summons or by can originating summons
and that the procedure by way of an originating summons only applies to
those matters referred to in O. 6, r. 2 of the High Court Rules and to those
matters which may be disposed of in chambers find that where any matter is
brought to the High Court by means of an originating summons when it
should have been commenced by writ, the court has no jurisdiction to make
any declaration.
 453

As pointed out earlier, this action is brought in terms of Statutory Instrument

No.156 of 1969, which was itself made in accordance with the then s. 28 of
the Constitution now Art. 29. Article 29 (1) of the Constitution reads a
follows:

"29. (1) Subject to the provisions of clause (6), if any person alleges that
any of the provisions of Arts. 13 to 27 (inclusive) has been, is being or is
likely to be contravened in relation to him, then, without prejudice to any
other action with respect to the same

p92

matter which is lawfully available, that person may apply to the High
Court for redress."

The petitioner is presently in detention. He alleges in his petition that he is

unlawfully detained contravention among other things of Arts. 15 and 17. He
has thus applied to this court by way of a petition as provided for in the
Constitution for redress. The 5th edition of the Concise English Dictionary
defines the word redress among other things to mean remedy. Art. 29 (2)
insofar as is relevant reads as follows:

"The High Court shall have original jurisdiction:

(a) to hear and determine any application made by any person in

pursuance of clause (1).''

I am satisfied that this court has original jurisdiction to hear an application by

way of a petition and subject to clause 8 this court has powers to make such
orders, issue such writs and give such directions which may be considered
appropriate for the purpose of enforcing or securing the enforcement of any of
the provisions of Arts. 13 to 27, I am fortified in this approach by the
provisions of Art. 29 (8) which insofar as is relevant reads:

"29 (8) No court of law shall make an order for damages or compensation
against the Republic in respect of anything done under or in the execution of
any restriction or detention order signed by the President:

Provided that nothing in this clause shall apply to a claim for damages or
compensation arising from:

(i) physical or mental ill-treatment;

(ii) any error in the identity of the person restricted or detained."
 454

Generally actions for damages are commenced by a writ of summons but this
does not necessarily mean that there is no other way such actions can be
commended. 0.6 r.1(1) Cap. 50 reads as follows:

"l (1) Except as otherwise provided by any written law or these Rules,
every action in the court shall be commenced by a writ of summons."

The Constitution is a written law providing for a method by which an

individual who alleges contravention of certain articles in respect of him can
bring an action, namely, by way of a petition. After a very careful
consideration of the relevant articles of the Constitution, I have no doubt in
my mind that this court has jurisdiction to deal with the prayers as contained
in the petition. The case of Chikuta in my view has no application to the
present proceedings because in that case the written law specifically provided
for what actions to be commenced by a writ of summons and what actions
must commence by originating summons. The Constitution in the present
proceedings has prodded that any complaint

p93

of contravention of certain articles must commence by way of a petition. The

High Court Rules themselves make allowance where a written law provides
its own methods of commencing actions. In the circumstances I find no merit
in the preliminary issue raised. The objection based on the preliminary issue is
accordingly dismissed.

The petitioner's prayers can be summarised under three distinct heads,

namely, a declaration that his detention is unlawful; an award for damages for
inhuman treatment and compensation for wrongful arrest and unlawful
detention. The claims for a declaration that the detention is unlawful and for
compensation for wrongful arrest and unlawful detention are in my view
related and are matters of argument and submissions on the law based
generally on facts not dispute. On the other hand the claim for damages for
inhuman treatment is a matter of evidence. In the circumstances, I propose to
deal with the claim for damages for inhuman treatment first particularly that
both counsel's submissions do not specifically touch on this claim. I am
however mindful that in rolled up claims one repeating himself is inevitable.

Paragraphs 7, 8, 9 and 10 of the petition read as follows:

"7. Your petitioner spent the next day at Kabwata Police Station. He was
not allowed to send any messages out or make any phone calls and no food
was provided until lunch time. As on the previous night your petitioner spent
the night of 3rd July, 1981, without any bedding. Because it was very cold he
had to use a door mat made of sisal as a blanket. Later the in the night he was
 455

joined by about a dozen people arrested for all sorts of offences, mostly
loitering.

8. On 4th July, 1981, at about 1700 hours your petitioner was taken back
to Lilayi where after supper interrogation commenced. This was coupled with
threats and actual torture which resulted in bruises and cuts as well as swollen
glands. The interrogation proceeded intermittently for the next three days and
your petitioner was asked to write statements on the basis of the answers he
had given. He was also informed that while there he had no rights to legal
representation.

9. On 6th July, 1981, at about 1600 hours your petitioner was taken back
to Lusaka Central Police and remained there until he was transferred to
Kabwe Maximum Security Prison (Mukobeko), on 9th July, 1981, when he
was served with the first detention order under reg. 33 (6) of the Preservation
of Public Security Regulations.

10. At Lusaka Central Police Station your petitioner spent the nights of
6th and 7th July, 1981, in a crowded cell with urine on the floor and was lucky
to have two covers provided by a relation."

It is common ground that the petitioner spent two nights in the cells at
Kabwata Police Station. The petitioner told the court that on the first night it
was cold; he requested for a blanket from the officer on duty. But

p94

the officer on duty told him that he was not allowed to have blanket.
According to the petitioner he slept on the floor without any covering. On the
second day, he again requested for a blanket; he was again told that he was not
allowed to have a blanket. According to the petitioner on the second evening
he had to use a door mat to cover himself as it was really chilly. He stated that
most of the time he was alone in the cell but at midnight of the second day a
bunch of people were brought in. It is also not in dispute that on the 4th July,
the petitioner was taken to Lilayi where he was interrogated. The petitioner
testified that during the interrogation he was threatened and tortured by DWs
5 and 6 resulting in bruises and cuts as well as swollen glands. The petitioner
also explained that he was told while at Lilayi that he had no rights to legal
representations. It is further common ground that the petitioner spent the
nights of the 6th and 7th July, 1981, in a cell at Lusaka Central Police Station.
The petitioner testified that the cell was crowded. The floor was covered with
urine. He was provided two covers by a relation.

PW2 also in detention testified that on the 9th July, he was transferred to
Kabwe Maximum Prison. On the way to Kabwe he was in company of the
petitioner. In Kabwe he stayed with the petitioner in the same cell. According
 456

to this witness, he noticed a deep cut right under the nose of the petitioner
which looked fresh. While in Kabwe he saw the petitioner's wounds on the
back also fresh. Both the petitioner and PW2 gave evidence that while at
Kabwe they were attended to by a doctor.

DW3, constable stationed at Kabwata Police Station testified that he was on

duty on the 2nd July, when the petitioner was in the cells at Kabwata Police
Station. According to this witness, there are two cells at Kabwata Police
Station and in each cell there are two blankets. This witness said that he found
the petitioner already at the Police Station when he reported for duty. He
denied that the petitioner could have been brought to the police station after
2000 hours. According to this witness the blankets in the cells were two weeks
old. The witness explained that it is written down in the regulations that there
must be blankets in the cells and for this reason they had blankets in the cells.

DWs 5 and 6 attended the interview where the petitioner was interrogated at
Lilayi. DW5 stayed at the interview from 1000 hours to 1500 hours. He was
there as a listener. He never put any questions to the petitioner because
according to him the petitioner never in the interview talked about arms which
information he was assigned to obtain. DW6 attended the interrogation from
1400 hours to 1800 hours. His assignment was to collect the petitioner's
personal data. He never questioned the petitioner himself but he admitted
putting questions to the petitioner for clarification only. Both DWs 5 and 6
denied beating the petitioner. Both witnesses also denied seeing anybody at
the time of interrogation beating the petitioner. The two witnesses did not
know each other. They also did not know any of the other members in the
interrogation team.

I have very seriously addressed my mind to the evidence relating to the

alleged inhuman treatment of the petitioners it would appear to me

p95

that the issue is one of credibility. I am not sure whether DW3, a constable at
Kabwata Police Station, knew what he was talking. According to him he
found the petitioner in the cell shortly after 1600 hours. Yet the occurrence
book shows that the petitioner arrived at Kabwata Police Station at 2130
hours. The occurrence book written by the Police supports the evidence of the
evidence of the petitioner to DW3 they have two blankets, two weeks old at
Kabwata Police cells because the regulations say so. I observed this officer in
the witnesses box; apart from being sluggish he was certainly absent minded
in the witness box and confused. As against his version of the situation at
Kabwata Police cells, I have no hesitation in accepting the petitioner's
evidence. Even if there were two blankets two weeks old in the cell, the
evidence is that there were about thirteen people in the cell on the second
 457

night and the situation still remained same namely two blankets in one cell for
thirteen people.

The evidence of DWs 5 and 6 was to say the least the most startling. The
petitioner was in his evidence emphatic and categoric that the two witnesses
attended the interrogation sessions at Lilayi. He said that the two apart from
using abusive language threatened, assaulted him with a stick and tortured
him. He further said DW5 is the officer who said he, the petitioner, had no
right to legal representation at the interrogation. DW6 according to the
petitioner questioned him about how his father and the late Kapwepwe died.
Yet according to DW5 he received an instruction to go to Lilayi where the
petitioner was being interviewed to listen whether the petitioner would talk
about procurement of arms. He sat at the interview from about 1000 hours to
1500 hours just listening. According to him he never put a single question to
the petitioner. At 1500 hours because the petitioner did not talk about
procurement of arms he left not to go to the office but to take his child to the
hospital. In case of DW he was given instructions to go to Lilayi to collect
personal data of the petitioner. He stayed at the interview from 1400 hours to
1800 hours just to collect personal data. He put no question to the petitioner
apart from a question of clarification. The personal data he wanted was where
the petitioner went to school. I seriously observed both witnesses in the box;
they impressed me to be witnesses of aggressive personality. DW6 was
sweating and shaking in the witness box. He explained when asked that he
was sweating as a sign of being physically healthy. This is the witness who
according to the petitioner asked him to do press-ups at the time of which he
is alleged to have said the petitioner was physically fit. The two witnesses
denied threatening and torturing the petitioner. I am not impressed with their
evidence and it certainly did not represent the truth of what transpired at the
interrogation sessions. In fact they stayed longer at the interrogation than they
told the court. On the issue of credibility I have no difficulty in accepting the
evidence of the petitioner on the question of inhuman treatment. I am satisfied
that DWs 5 and 6 threatened and tortured the petitioner resulting in the
injuries complained of.

The petitioner told the court that he spent the nights of 6th and 7th July in a
crowded cell with urine on the floor at Lusaka Central Police

p96

Station. A relation provided him with two covers. There has been no evidence
to contradict the petitioner on this. I thus accept it as undisputed.

The question that I must resolve on this point is whether having accepted the
story of the petitioner this court can make an order awarding the petitioner
damages. By Art. 29 (8) this court is precluded from making an order for
damages or compensation against the Republic in respect of anything done
 458

under or in execution of a detention order signed by the President except

where the claim is for damages or compensation arising from physical or
mental ill-treatment or from an error in the identity of a person detained. My
task in the present case is very simple. The petitioner claims damages in
respect of inhuman treatment done before the Presidential detention order was
made and signed. At any rate the claim is for damages arising from physical
and mental ill-treatment. In the circumstances having accepted the petitioner's
story. I hold that he is entitled to an award of damages for the inhuman
treatment complained of in his petition. I leave the question of quantum of
damages for further submissions.

Before dealing with the other two prayers, I would like to deal with three
matters not specifically prayed for in the petition but strongly brought out in
the petition and evidence. These matters are: that the petitioner was not
weighed until 20th August, 1981 and that the petitioner when moved from
Kabwe Maximum Security Prison to Lilayi on 22nd July, he was kept in
solitary confinement although he committed no scheduled offences and that
his detention between 2nd July, and 9th July, was unlawful as he was not
served with a written police detention order.

DW1 told the court that the petitioner was admitted at Lilayi on 22nd July,
and was not weighed until 20th August, 1981. He explained that this was so
because as a new prison it did not have a scale. Reg. 12 of the Preservation of
Public Security (Detained Persons) Regulations reads as follows:

"12. The officer-in-charge shall, if circumstances permit, cause every

detained person to be medically examined by a medical officer and weighed
immediately on his admission to place of detention and at convenient
intervals thereafter."

The language of the regulation is clear. The weighing must be done

immediately on admission. The petitioner was in the hands of the detaining
authorities from 2nd July. He was weighed on the 20th August. This cannot
by any imagination be described as immediate. In the circumstances , I hold
that the petitioner was not weighed immediately upon admission as required
by law. This was therefore in breach of reg.12 of the Preservation of Public
Security (Detained Persons) Regulations.

The next question is whether the petitioner was kept in solitary confinement
at Lilayi.

p97

Regulation 20 (1) (a) (b) of the Preservation of Public Security (Detained

Persons) Regulations reads:
 459

"20 (1) An officer-in-charge may punish any detained person found after
due inquiry to be guilty of a scheduled offence by ordering him to undergo
one or more of the following punishments:

(a) separate confinement in a separate cell or other place set aside for
such punishment for a period not exceeding sixteen days on the normal diet as
set out in the Second Schedule;
(b) separate confinement in a separate cell or other place set aside for
such punishment for a period not exceeding seven days upon a reduced diet
as set out in the Second Schedule."

It is common ground that the petitioner was not found guilty of any scheduled
offence. The evidence of DW1 is that the accommodation at Lilayi consists of
rooms intended for senior police officers who go there for training. He
explained that each room has a bed, mattress, built-in wardrobe, a wash basin,
a tap and chest of drawers. Each detainee has two bedsheets and two blankets.
He said at the material time there were only detainees at Lilayi. They were
each allowed two visitors once a week and they were allowed to read
newspapers and write letters. He further explained that each detainee had a
room to himself; but that since investigations were still continuing the leader
of the investigations team had instructed them not to mix the detainees.

I have carefully considered the relevant evidence relating to the issue of

solitary confinement according to the regulations separate confinement's a
form of punishment given to a person who has been found guilty of any of the
scheduled offences under the regulations. This punishment is served in a
separate cell or a place set aside for such punishment. There is no evidence
before me that the rooms at Lilayi were set aside for purposes of the
punishment of separate confinement. The evidence I have is that each
detainee was in a separate room with all the facilities and entitled to two
visitors a week. It would appear that the main complaint of the petitioner is
that he did not mix with his fellow detainees. I had a very brief perusal of the
regulations. I was not able to find any regulation entitling a detainee to mix
with fellow detainees. If the petitioner's complaint is that he was not allowed
to mix with fellow detainees but allowed two visitors week, what then would
have been the complain if at the time he was the only detainee at Lilayi. The
reason for detainees not mixing at that time was given. I cannot say in the
circumstances of the situation that the explanation was unreasonable. In my
opinion the words solitary confinement must not be understood by the
dictionary meaning only but must be construed in the context of the facilities
available in a place. On the evidence before me I am not satisfied that the
petitioner was kept in solitary confinement at Lilayi. In the circumstances, I
refuse to make a declaration on the issue of solitary confinement..

Another issue raised is whether the petitioner's detention from

 460

p98

2nd July, to 9th July, was unlawful on account of not having been served with
a written police detention order. The issue for determination is whether a
written police detention order is necessary before anybody can be detained
under the Preservation of Public Security Regulations. There is no direct
authority on the point and the regulation does not specifically say so. But in
my view the issue centres on the interpretation to be placed on the relevant
regulation. The practice has always been that when the police arrest and detain
a person under reg. 33 (6) of the Preservation of Public Security Regulations
they always serve that person with a written document generally phrased like
in this case as follows:

THE PRESERVATION OF PUBLIC SECURITY ACT

(Laws, Volume II, Cap. 106)
THE PRESERVATION OF PUBLIC SECURITY REGULATIONS
DETENTION ORDER IN EXERCISE of the powers conferred by Regulation
33 (6) of the Preservation of Public Security Regulations, I HEREBY ORDER
that: KAKA PUTAin respect of who I have reason to believe that there are
grounds which would justify his/her detention under this Regulation, be
detained for a period not exceeding 28 days against him/her. Made at Lusaka
this 9th day of July, 1981."

Is the service of this document necessary in Law? Regulation 33 (6) insofar as

is relevant roads as follows:

"33 (6). Any Police officer of or above the rank of Assistant Inspector
may, without warrant, arrest any person in respect of whom he has reason to
believe that there are grounds which would justify his detention under this
regulation, and may order that such person be detained for a period not
exceeding twenty-eight days pending a decision whether a detention order
should be made against him, . . ."

It must be observed that the arrest in the first place is without a warrant. The
regulation further says that a Police officer of a certain rank "may order that
such person be detained . . . " It does not say "may make an order". The
wording of this regulation may be contrasted with the language of reg. 33 (1)
which reads:

"33 (1) Whenever the President is satisfied that for the purpose of
preserving public security it is necessary to exercise control over any person,
the President may make an order against such person, directing that such
person be detained and thereupon such person shall be arrested whether in or
outside the prescribed area, and detained."
 461

The relevant words for contrast read " . . . the President may make an order
against such person, directing that such person be detained . . .''

p99

In my opinion an order by the President has to be made in writing and signed

for one very simple reason and that is he does not himself come into contact
with the person to be detained and furthermore under Art. 29 (8) already cited
for a court not to award damages against the State it must be shown that the
thing done was done in execution of a detention order signed by the President.
It would thus appear to me that while there are clear provisions that a
Presidential Order ought to be in writing the situation is not clear with regard
to police detention order. In my opinion I do not think that a Police detention
order under reg. 33 (6) need be in writing. In the case of Sharma v The
Attorney-General (2) at pp. 167/168 Baron, D.C.J., dealing with a Police
revocation order said:

"It is convenient to deal at this point with the document revoking the
police detention order. The point is perhaps academic, but I venture to doubt
whether there is any necessity for a written order directing the detention of
the person concerned, and I have even greater doubts whether there is any
power to revoke any such order, whether written or verbal."

It may be argued that the position of a revocation order is different but in my

view, I am satisfied that under reg. 33 (6) there is no requirement of a written
police detention order. The evidence of DW2 is that he ordered the arrest of
the petitioner under reg. 33 (6) of the Preservation of Public Security
Regulations. In my opinion a verbal order was adequate to comply with the
regulation. The service of a written Police document subsequently is only
necessary as it would appear for purposes of lodging the detainee in the
prison; otherwise it does not alter the position of detention. In the
circumstances I cannot say failure to serve the petitioner with a written Police
detention order on 2nd July, rendered the detention of 2nd to 9th July,
unlawful.

I now turn to the main prayer in the petition, namely a declaration that the
petitioner's detention is unlawful. The claim for compensation for wrongful
arrest and unlawful detention will depend on whether this court can grant the
declaration being sought. Mr Stacey, on behalf of the petitioner advanced five
arguments in his submissions in this prayer, namely, (1) that the petitioner's
detention is a nullity in that the petitioner is detained in a fashion not
authorised by law; (2) that the petitioner's detention cannot reasonably be
justifiable; (3) that the petitioner's grounds of detention were not served on
him as soon as reasonably practicable nor in compliance with Art. 27 (1) (a)
of the Constitution; (4) that the grounds of detention apart from being untrue
are not detailed enough to comply with the provision of Art. 27 (1) (a) of the
 462

Constitution; (5) that the petitioner's continued detention is in contravention to

the provision of Art. 15 (3) of the Constitution.

The gist of Mr Stacey's submissions on the first argument is that the petitioner
is now detained under a law purported to have existed before independence to
and purported to have been inherited into post independence law when such
law did not exist before independence and

p100

could thus have not been inherited. He submitted that no powers of detention
were ever inherited under the Preservation of Public Security Regulations
1964. Mr Stacey outlined the history of the Preservation of Public Security
Regulations starting with the Preservation of Public Security Ordinance No. 5
of 1960. To appreciate the force of Mr .Stacey's submissions on the first
argument a brief outline of the history of the present reg. 33 of the
Preservation of Public Security Regulations is necessary. Under two ss,
namely, 3 and 4 the Preservation of Public Security Ordinance No. 5 of 1960
(hereinafter referred to as the Ordinance) the Governor was empowered to
make regulations after having taken certain steps to deal with certain
situations. The point that must be made absolutely clear at the outset is that
regulations under s.3 were intended to deal with a situation so declared under
that section by notice in the Gazette. On the other hand regulations made
under s.4 were intended to deal with a situation so grave that the powers
conferred by s. 3 were inadequate. Under s.4 the declaration was by
Proclamation. Another point to take note of is that only regulations made
under s.4 of the Ordinance empowered the Governor to make orders of
detention. Section 3 (1) (2) and (3) of the Ordinance read as follows:

"3 (1) If at any time the Governor is satisfied that it is necessary for the
preservation of public security so to do, he may, by notice in the Gazette,
declare that the provisions of sub-sections (2) and (3) of this section shall
come into operation and thereupon those provisions shall come into operation
accordingly; and they shall continue in operation until the Governor, by
further notice in the Gazette, directs that they shall cease to have effect, where
upon they shall cease to have effect except as respects things previously done
or omitted to be done.
(2) Subject to the provisions of sub-section (3) of this section the
Governor may for the preservation of public security by regulation-

(a) make provision for the prohibition of the publication and

dissemination of matter prejudicial to public security and, to the extent
necessary for that purpose, for the regulation and control of the production,
publishing, sale, supply, distribution and possession of publications;
(b) make provision for the prohibition, restriction and control of
assemblies;
 463

(c) make provision for the prohibition, restriction and control of

residence, movement and transport of persons, the possession, acquisition, use
and transport of movable property and the entry to, egress from, occupation
and use of immovable property;
(d) make provision for the regulation, control and maintenance of
supplies and services;
(e) make provision for, and authorise the doing of, such other things as
appear to him to be strictly required by the exigencies of the situation in the
Territory.

p101

(3) Regulations made under this section shall make provision for any of
the matters set out in sub-section (2) of section four of this Ordinance.

And ss.4(1) and (2) reads an follows:

''4 (1) If at any time the Governor is satisfied that the situation in the
Territory is so grave that the exercise of the powers conferred by section three
of this Ordinance is inadequate to ensure the preservation of public security he
may by Proclamation declare that the provisions of sub-section (2) of this
section shall come into operation, and thereupon those provisions shall come
into operation accordingly; and they shall continue in operation until the
Governor by a further Proclamation directs that they shall cease to have effect,
whereupon they shall cease to have effect except as respects things previously
done or omitted to be done.

(2) The Governor may, for the preservation of public security make
regulations to provide, so far as appears to him to be strictly required by the
exigencies of the situation in the Territory, for:

(a) the detention of persons;

(b) requiring persons to do work and render services."

On the 11th May 1960, by Government Notice No. 121 (Proclamation No. 2
of 1960) the Governor invoked sub-ss. (2) and (3) of s. 3. This appears to have
been incorrect because by law it should have been by notice. But in the same
Proclamation he invoked s. 4 which by law could only be invoked by
Proclamation. On the same date 11th May 1960, by Government Notice No.
122 the Preservation of Public Security Regulations 1960 were brought into
effect empowering the Governor inter alia to make orders of detention.

On 27th July 1964, by Government Notice No. 374 notwithstanding

Proclamation No.2 of 1960, the Governor (correctly this time) invoked sub-ss.
(2) and (3). of s. 3. On the same date 27th July 1964, by Government Notice
No.375 of 1964, in exercise of powers conferred upon the Governor by ss. 3, 4
 464

and 6 only of the Ordinance (and NOT s.4) the Governor made the
Preservation of Public Security Regulations 1964. These Regulations having
been made under ss. 3, 5 and 6 did not provide powers of detention as such
powers could only be provided by regulations made under s.4. These
regulations revoked Preservation of Public Security Regulations 1961
published by Government Notice No.234 and made in terms of ss. 3, 4, and 6
of the Ordinance and which had provided for powers of detention. This meant
that by 27th July 1964, the only Preservation of Public Security Regulations
existing were those made under ss.3, and 6 and which did not provide for
powers of detention. But the next day on 28th July 1964, by Government
Notice No.376 of 1964 (Proclamation No.5 of 1964), rightly so, the Governor
invoked sub-ss. (2) of s.4 of the Ordinance and revoked Proclamation No.2
which was published in Government Notice No.121 of 1960. On the same
date

p102

28th July, by Government Notice No.377 of 1964, the Governor made the
Preservation of Public Security (Amendment) Regulations in exercise of the
powers conferred upon him by ss. 4,5 and 6 of the Ordinance amending by
introducing powers of detention into Regulations made under reg.3. These
Amendment Regulations introduced s. 31A (Powers of Detention) which is
now reg. 33.

The submission of Mr Stacey is that the Governor had no power to make

amendment Regulations under s.4 amending Principal Regulations made
under s.3 unless the Principal Regulations had been made under s.4. Mr
Stacey contends that since there were no Principal Regulations made under s.4
the Governor could not have introduced reg.31A by amending Principal
Regulations which did not exist. He submitted that reg.31A being the ancestor
of reg.33 of the present Regulations and if 31A did not exist and was a nullity
it could not be imported into post independence law. Mr Stacey further
submits that this being the position there are no laws of detention in Zambia
today and thus the petitioner's deletion is not authorised by any law in
Zambia.

At the outset I wish to observe that the point has been well taken and has great
force in it. I agree that these were not the arguments which were advanced
the case of Shamwana v Attorney-General (3); these are new arguments. In
the case of Shamwana (3) the issue raised was whether a declaration still
existed to justify the detening of person. The Supreme Court held that the
declaration is by law deemed to exist. It is unfortunate that the issue was not
raised in the petition itself to have enabled the court to have had the benefit of
arguments from the State as well. Nevertheless I have carefully addressed my
mind to the arguments and submissions of Mr Stacey on the point. In my view
the crux of the matter is not whether the Governor had power to make the
 465

Preservation of Public Security (Amendment) Regulations under s.4

amending regulations made under s.3. The issue as I see it is this - had the
Governor powers to make regulations wider s.4? The answer to the question
from s.4 (2) already cited is in the affirmative. It follows that if one were to
drop out the word "amendment" from the Preservation of Public Security
(amendment) Regulations the regulations can and should still stand in their
own right since the Governor was empowered to make the same under s.4 and
there was a Proclamation in force. Looking at the issue differently; the
Governor had powers to make regulations under both sections. He once did so
by Government Notice No. 234 of 1961. Since the Regulations of 27th July
were not revoked it can be implied that by the Amendment Regulations the
Regulations now in existence are those made by the Governor under s.3 and
later ss. 4,5 and 6. For my part I am satisfied that these two sets of regulations
can be read together. They were made under one Ordinance and deal with one
matter, namely, preservation of public security. At worst one would say the
purported amendment has no effect but the Regulations as made under s.4 are
valid. Whichever way one looks at the issue I am for my part satisfied that the
law of detention and the powers of detention exist in Zambia. In other words
the Preservation of Public Security Regulations brought into effect by
Government Notice No.376

p103

of 1964 and the Preservation of Public Security (Amendment) Regulations by

Government Notice No.377 of 1964 were in my view validly made because
the Governor had under both ss.3 and 4 of the Ordinance powers to make the
same. Reg.31A, the ancestor of the present 33 was therefore validly made and
therefore lawfully inherited into the post independence law of detention. The
petitioner's detention therefore was made under an existing valid law of
detention lawfully inherited into post independence law. Accordingly I hold
that on this point though well taken, this petition cannot succeed.

The second argument advanced on behalf of the petitioner is that the

detention is not reasonably justifiable. Counsel argued that the petitioner is
faced with the most invidious of tasks that, he has to establish his innocence
without being able to give evidence as to the substance of the allegations
against him. He pointed out that the personality of the President and the fact
of the order are deemed to be unquestionable and the petitioner is deemed to
be guilty until found innocent. Counsel contended that if there really was
justification for detention why was he not served at least with a police
detention order on 2nd July? He said the dates in the grounds of detention
were long passed. He submitted that it is obvious that the inquisitors hoped to
obtain from a professional source information relating to Mr Musakanya who
is represented by the petitioner and to whom he was also related.
 466

In reply, Mr Kinariwala urged the court to take judicial notice that the
situation that obtained at the time of the petitioner's detention was that there
was a coup plot where some people had been detained and the petitioner was
alleged to have involved himself in a plot to rescue the people detained in
connection with the coup plot. He submitted that in those circumstances it
cannot be argued that the petitioner's detention was not reasonably justifiable.

The petitioner was detained by the President pursuant to reg. 33 (1) of the
Preservation of Public Security Regulations already cited above. In the case of
Kapwepwe, Kaenga v Attorney-General (4) Baron, J.P. (as he then was) at p.
260 in a slightly different context from the argument advanced in this court
said:

"And one must not lose sight of the fact that there is no onus on the
detaining authority to prove any allegation beyond reasonable doubt, or
indeed to any other standard, or to support any suspicion. The question is one
purely for his subjective satisfaction."

It is thus not for the court to determine whether the detention was reasonably
justifiable because the test is one of subjective satisfaction of the President
only. A lot has been said about laws of detention. Baron, J.P., observed in the
case of Kapwepwe, Kaenga (4) that the powers of detention are far-reaching
but what has to be stressed is that the President has been given powers by
Parliament to detain persons who are not even thought to have committed any
offence or to have engaged in activities prejudicial to security or public order
but perhaps because of their known associates or for some other reason the
President believes

p104

it would be dangerous to detain. By their nature the laws of detention are

intended for circumstances where ordinary criminal law or the ordinary
criminal procedure is regarded by the detaining authority as inadequate to
meet a particular situation.

Whether a detention is reasonably justifiable is a matter for the detaining

authority. Certainly this imposes an invidious task on the detainee. But this is
what the law says. I have already in my judgment considered the issue of the
police detention order. But even if I were to declare that the petitioner was
unlawfully detained between the 2nd and 9th July, when police written
detention order was served on him this in itself would not have meant that his
present detention is not reasonably justifiable. On this argument also I hold
that this petition cannot succeed.

The third argument advanced on behalf of the petitioner is that the grounds of
detention were not served on the petitioner as soon as was reasonably
 467

practicable. It was contended that if the grounds existed they must have been
within the contemplation of the arresting authorities on the 2nd July and
should have been served immediately the Presidential detention order was
served. It was further submitted that service failed to comply with art. 27(1)
(a) of the Constitution in that the Presidential order was made on the 14th
July, and the service of the grounds was made on the 28th July. It was also
contended that the petitioner was in fact already detained and the police order
was only revoked after the Presidential order had already been made. It was
submitted that for this purpose fourteen days period commenced one second
after midnight on 14th July and expired at midnight on the 27th July.

It is now established law in Zambia that a police detention order made under
reg. 33 (6) of the Preservation of Public Security Regulations is distinct from a
Presidential Detention Order made under reg. 33 (1) (see Sharma (3) case) It
is common ground that the Presidential Detention Order made on the 14th
July 1981, was served on the petitioner on the 15th July, 1981, at 1720 hours.
The grounds of detention were served on the 28th July at 1720 hours.
Although the order was made on the 14th July it could in my view not be
effective until service. Section 35 (a) of the Interpretation and General
Provisions Act Cap. 2 reads:

"In computing time for the purpose of any written law :

(a) a period of days from the happening of an event or the doing of

any act or thing shall be deemed to be exclusive of the day on which the event
happens or the act or thing is done..."

Moodley, J. in Mungabangaba v Attorney-General (5) considered this Action

and said:

"Accordingly, I hold that for purposes of Art. 27 (1) (a) of the

Constitution, the computation of time for furnishing the statement of the
grounds for detention should be exclusive of the day of which the actual
detention order was signed and that the period of fourteen days should be
calculated thereafter''.

p105

Putting it at the highest in the present case the grounds were served exactly
within fourteen days excluding the date on which the Presidential Order was
signed. It certainly would be most desirable from a detainee point of view that
grounds which must be presumed to be in existence at the time of arrest must
be served at the time of the order. But this is not the law. Article 27 (1) (a) of
the Constitution in part reads as follows:
 468

"27 (1) Where a person's freedom of movement is restricted, or he is

detained, under the authority of any such law as is referred to in Article 24 or
26, as the case may be, the following provisions shall apply:

(a) he shall, as soon as is reasonably practicable and in any case not

more than fourteen days after the commencement of his detention or
restriction, he furnished with a statement in writing in a language that he
understands specifying in detail the grounds upon which he is restricted or
detained."

In a recent, Supreme Court decision in Attorney-General v Valentine Shula

Musakanya (6) after citing the above article of the Constitution Silungwe,
C.J., had this to say:

"Taking the above quotation as a whole, it is clear that the fundamental

object intended to be secured by paragraph (a) of clause (1) is to provide a
machinery for enabling a detained or restricted person to know as soon as
possible, but not later than fourteen days, the reasons for his detention or
restriction.

I would regard the expression "as soon as is reasonably practicable and in

any case not more than fourteen days . . " as falling into two parts, namely (a)
"as soon as is reasonably practicable", and (b) "in any case not more than
fourteen days."

As to (a), my understanding of it is that it does not constitute a mandatory

period; it serves as an injunction to urgency. In the High Court case of Re
Thomas James Cain (7) Doyle, C.J., considered, at page 77, the meaning of
the words, "as soon as is reasonably practicable" and came to the conclusion
that those words "are intended to impart a sense of urgency but that the true
limit is the period of fourteen days. With that conclusion I am in full
agreement.

With regard to (b) it clearly represents the maximum, that is, the
mandatory, period within which a detainee or restricted must be furnished
with grounds for his detention or restriction, as the case may be."

I am bound by the decision of the Supreme Court in the instant case. In the
circumstances, I hold that, on the facts not in dispute, the detaining authority
complied with the Constitutional requirements of Art. 27(1)(a).

p106

The fourth argument advanced on behalf of the petitioner was that the grounds
of detention apart from being spacious lack the detail to afford the petitioner
an opportunity to make meaningful representations. It was argued that it was
 469

not possible to understand something and make intelligent representation

thereto unless the presentation contained an inherent logic. This argument in
any view amounts to saying that the grounds are vague. The law on the
question of vagueness of grounds has been considered in very many cases in
Zambia. The latest of the cases is the case of Attorney-General v Valentine
Shula Musakanya (6) which reviewed some of the previous cases. The
petitioner's grounds of detention are as follows:

"(1) That on a date unknown, but during the month of April 1981, while at
GEOFREY HAAMAUNDU's office, situated at Chuundu House, Lusaka, you
were informed by him namely, GEOFREY HAAMAUNDU that there were
ex-residents of Zambia abroad who were willing to give financial help to
Messrs EDWARD SHAMWANA and VALENTINE MUSAKANYA but that
they were unable to transfer their money to Zambia. Subsequently, you were
informed by GEOFREY HAAMAUNDU that he (GEOFREY
HAAMAUNDU) was looking for somebody in Zambia who had lot of
Kwacha and who would be willing to exchange it with the U.S.A dollars
abroad. MR GEOFREY HAAMAUNDU further informed you that the money
was intended for use to rescue Messrs EDWARD SHAMWANA and
VALENTINE MUSAKANYA who were involved in the abortive coup
attempt of October, 1981;

(2) That subsequently on or about the 22nd May 1981, you informed
WILLEM JOHANNES PRETORIUS of Chingola about the aforesaid
proposal namely, exchange of U.S.A dollars with Kwacha, as you were aware
that WILLEM JOHANNES PRETORIUS was looking for foreign currency,
and that soon after informing him, you instructed him namely WILLEM
JOHANNES PRETORIUS to travel to Lusaka to meet GEOFREY
HAAMAUNDU through a third man namely GEORGE KAPOTWE with a
view that GEOFREY HAAMAUNDU and WILLEM JOHANNES
PRETORIUS may discuss the exchange rate of the U.S.A dollars and the
Zambian Kwacha. You further informed the said PRETORIUS that the money
was intended for use to rescue the detainees involved in the abortive coup
attempt of October, 1981;
(3) That you failed to report the above activities to the police or any other
Government Security Forces."

The contention is that to state that " on a date unknown but during the month
of April" is vague. In relation to the second ground it was argued that the
authorities should have fixed a date and that the date of the intended rescue
should have been mentioned. In the case of Attorney-General v Musakanya
(6) the appeal hinged on the question of whether the grounds for detention can
be said to be vague merely

p107
 470

because of a failure to state in it a specific date on which the detainee

allegedly participated in activities prejudicial to public security. It was argued
in that case on behalf of the appellant that although failure to specify a date in
a ground may in some cases have the effect of depriving a detainee of the
opportunity to put forward an alibi it does not in itself constitute vagueness in
ground. At pp.3 and 4 Silungwe, C.J., in the Musakanya case (6) stated;

"In Re Kapwepwe and Kaenga (4) followed by Munalula and Six Others v
The Attorney-General (8) this court laid down the test to be applied whenever
an allegation of vagueness in a ground for detention is made. The test is
whether a detainee has been furnished with sufficient information to enable
him to know what is alleged against him so that he can bring his mind to bear
upon it and so enable him to make a meaningful representation to the
detaining authority or the Detainees' Tribunal. An illustration which is
entirely in point here was given by Baron , D.C.J., as he then was, Kapwepwe
and Kaenga (4) concerning the application of the foregoing test. He said at
p.262 lines 29-44, that
' . . . if the grounds were;

". . . that during the months of January and February 1972 you
addressed meetings in Lusaka at which you advocated the use of violence
against persons of different political or tribal affiliations . . ." '

This would enable the detainee to make presentations on the basis of alibi
or mistaken identity and also on the merits. For instance, he could say 'I have
never addressed meetings in the place' or 'During the months in question I was
engaged in a course of study in Dar-es - Salaam'... Or the detainee might say
'it is true that I addressed meetings in Lusaka during the months in question,
but I deny that I advocated violence of any kind.' This representation is no
more than a denial, but the information given cannot be held to be inadequate
only for that reason."

Another way of looking at the illustration without in any way altering its
meaning is this:

". . . that on dates unknown but between 1st January and 29th February
1972, you addressed meetings in Lusaka at which you advocated the use of
violence against . . . " This formulation is similar to the first ground for
detention in the present case. One thing that immediately strikes one's eye is
that only a period of time, as opposed to a specific date (or dates) is given in
the illustration. And yet it is apparent that the information contained therein
would, in the word of Barren, D.C.J., "enable the detainee to make
representations on the basis of alibi or mistaken identity and also on the
merits." That is to say, the information supplied would be adequate to enable a
detainee to make a meaningful representation. In regard to alibi, however, it
is evident that a detainee would encounter obvious difficulties
 471

108

unless the alibi is capable of covering the entire period reflected in the
ground. In other words, the aspect of alibi is relative: that is, relative not to the
length of period stated in the grounds, but to the detainee's movements during
the period stated.

In one case, a detainee might well be able to put forward an alibi on

respect of a period of one year, and in another, a detainee might be unable to
provide an alibi in respect of one day."

In the instant case the first ground does not mention specific dates but the
month is mentioned, a place where the petitioner is alleged to have met a
named person is mentioned; the purpose of the meeting is mentioned, the
purpose of the subject matter of discussion is mentioned. The people to be
rescued were mentioned. I cannot say that simply because a specific date was
not mentioned the grounds lack detail.

Turning to the second ground date is mentioned, person to whom the

information was passed is mentioned and the purpose of the money is
mentioned. I am satisfied that the ground contained enough information. In
the third ground the allegation is that the petitioner did not report the activities
alleged in (1) and (2) to the authorities. I find nothing vague in that. Without
being derogatory I must observe that the petitioner is an Advocate of the High
Court. I am in no doubt in my mind that he understands the grounds to enable
him to make a meaningful representation. In my opinion the grounds contain
sufficient information. As has been said many times it is not for the court to
determine the truth or falsity of grounds of detention.

The fifth argument advanced on behalf of the petitioner is that the provisions
of art. 15 (3) of the Constitution of Zambia are being contravened by the
continued detention of the petitioner. Art. 15 (3) of the Constitution reads as
follows:

"15 (3) Any person who is arrested or detained-

(a) for the purpose of bringing him before a court in execution of the
order of a court; to
(b) upon reasonable suspicion of his having committed, or being about
to commit, a criminal offence under the law in force in Zambia:

and who is not released, shall be brought without undue delay before a
court; and if any person arrested or detained as mentioned in para. (b) is not
tried within a reasonable time, then, without prejudice to any further
proceedings that may be brought against him, he shall be released either
 472

unconditionally or upon reasonable conditions including in particular such

conditions as are reasonably necessary to ensure that he appears at a later date
for trial or for proceedings preliminary to trial."

This article was the subject of consideration again in the case of Valentine
Shula Musakanya v The Attorney-General (9). In that case the court held that
person detained for the purpose of preserving public security is governed by
the provisions of Art. 27 (1) of the Constitution and

p109

not by those in Art. 15 (3) (b) of the Constitution unless such person is also
charged with a criminal offence in which event all the provisions would
become irrelevant. In the instant case the petitioner has not been charged with
any criminal offence. It thus follows that the detaining authorities are not
bound to take the petitioner before a court. The continued detention of the
petitioner cannot be said to be in contravention of Art. 15 (3) of the
Constitution.

For the foregoing reasons I hold that while the petitioner is entitled to
damages for inhuman treatment complained of in his petition, his detention is
lawful and accordingly, I dismiss the petition to that extent.

Costs normally follow the event. But where each party has been successful on
certain issues raised, as is the case here, I consider a fair order to be that each
party should bear his own costs and I so order.

Petition allowed in part

DERRICK CHITALA (Secretary of the Zambia Democratic Congress) v

ATTORNEY GENERAL (1995) S.J.

SUPREME COURT
NGULUBE, C.J., BWEUPE, D.C.J AND SAKALA, J.S.
20TH OCTOBER AND 1ST NOVEMBER, 1995
S.C.Z. JUDGMENT NO. 14 OF 1995
APPEAL NO. 92 OF 1995

Flynote

Constitution - Adoption of Constitution by the National Assembly - Whether

this reflected the will of the people.
 473

Judicial review - Leave for Judicial Review denied - Renewal of application

before the Supreme Court.
Grounds for Judicial Review - Illegality - Irrationality - Procedural
impropriety - Unreasonableness.

Headnote

The President, Acting under s.2 of the Inquiries Act, Cap 1981, appointed a
Commission to be chaired by the learned John Mwanakatwe, SC. To this end,
the Commission travelled around the country collecting views from the
Zambian people. At the end of the exercise, the Commission formulated a
draft constitution most of whose provisions the government refused to accept.
Instead the government drafted a constitution with controversial clauses in it
and sent it to Parliament for enactment and subsequent adoption. The
Commission had recommended that the Constitution be adopted by a
constituent assembly and national referendum. The appellant, in an effort to
challenge the government's decision, sought leave to apply for judicial review
of the goverment's decision to have the Constitution adopted by parliament.
The High Court denied leave and the appellant appealed to the Supreme
Court.

Held:

(i) Although the application was neither frivolous nor vexatious, it

was legally an untenable application on the face of it such that it
was not wrong for the judge below to refuse leave summarily

(ii) The applicant had sufficient interest in the matter

Cases referred to:

1) Ridge v Baldwin (1964)
2) Mwamba and Another v Attorney General (1993) 3 L.R.C. 166; S.C.Z.
Judgement No. 10 of 1993
3) Council of Civil Service Unions and Others v Minister for the Civil
Service
4) Patriotic Front ZANU v Minister of Justice, Legal and Parliamentary
Affairs (1986) L.R.C. (const.)672
5) Leonard Kafunda v The Attorney General and Another, Appeal No. 20 of
1992
6) Padfield v Minister of Agriculture, Fisheries and Food (1968) A.C. 997
7) Associated Provincial Picture Houses Ltd v Wednesbury Corporation
(1948)IK.B. 223
8) Reg. v Home Secretary, Ex.p Brind 21WLr of 22nd February 1991, 588 at
601
 474

For the Appellant: R. Simeza and J. Sangwa, of Simeza Sangwa and

Associates
For the Respondent: S. L. Chisulo, Solicitor General, and A. G.
Kinariwala, Principal State Advocate
___________________________________________
Judgment

NGULUBE, C.J.: delivered the judgement of the court.

Under the Supreme Court of Zambia Act, this is an appeal against the decision
of a High Court Judge refusing to grant leave to bring judicial review
proceedings. Under the Rules of the Supreme Court of England which apply
to supply and cassus omissus in our own rules of practice and procedure, this
would be a renewal of the application for leave to the appellate court. The
issue was whether the learned judge below was wrong to refuse to grant leave
and whether we should now do so in the particular circumstances of this case.

The facts and circumstances of the case appear to be common cause, and are
to be distilled from the Notice of application for leave to apply for judicial
review, the affidavit filed in support, and the report of the constitutional
Review Commission ( the Mwanakatwe Commission) together with
Government Paper No. 1 of 1995 (the White Paper).

The last named two documents were not filed with the court which was
requested to take judicial notice of these published public documents. The
Notice of Application is worth reproducing and was in the following terms:

“Name of Applicant: The Zambia Democratic Congress (ZDC) a political

party constituted pursuant to the provisions of the Societies Act.

Judgement, order, decision or other proceeding in respect of which relief

is sought:

The decision by the President and his Cabinet to have the next
Constitution enacted by the present National Assembly

Relief Sought:
1. an order of certiorari to remove into the High Court for the purpose of
quashing the decision by the President and his Cabinet to have the next
constitution enacted by the present National Assembly.

2. An order of mandamus directed to and compelling the President and his

Cabinet to take such measures as may be necessary to ensure that the
constitution is debated by and finally determined by a constituent assembly or
any other broad based group and subjected to a referendum
 475

3. If leave to move is granted, a direction that such grant should operate

as a stay of the implementation of the decision to which this application
relates pursuant to Rule 3(10) (a) of Order 53 of the Rules of the Supreme
Court.

4. An order for costs

5. And that all necessary and consequential directions be given.

Grounds on which Relief is sought.

1. The decision to have the Constitution enacted by the current National

Assembly has been made in bad faith, it is calculated and designed to enable
the present Government to single handedly determine the constitution, which
will favour it and disadvantage other interested parties.

2. The decision has been made in bad faith in that it is contrary to the
recommendations made by the Mwanakatwe Constitution Commission after
touring the country and receiving submissions from the people.

3. By virtue of this decision the President and his Cabinet have acted
unfairly and unreasonably in that they have totally ignored the
recommendations of the commission arrived at after receiving submissions
from the people and taking into account the need for legitimacy and durability
of the Constitution.

4. The decision to have the constitution enacted by the present National

Assembly as opposed to the Constituent Assembly and a referendum, is not in
furtherance of the general objectives and purposes of the Inquiries Act and
Terms of reference No. 1 and 9.

5. That the decision to have the Constitution enacted by the National

Assembly has been made in bad faith in that the objective is not to ensure the
legitimacy and durability of the constitution by for the President and his
Cabinet to determine aConstitution which will further their own interests at
the expense of those of the broad majority of the people.”

It was not in dispute that the President, Acting under S.2 of the Inquiries Act,
CAP 1981, appointed a Commission to be chaired by the learned John
Mwanakatwe, SC. The terms of reference should be referred to for their full
import but for present purposes, the appellant drew particular attention to
terms (1) and (9) which were in the following terms:

“To (1) collect views by all practical means from the general public both
in rural and urban areas and from Zambians living outside Zambia, on what
type of Constitution should enact, bearing in mind that the constitution should
 476

exalt and effectively entrench and promote legal and institutional protection of
fundamental human rights and stand the test of time;

(9) recommend on whether the Constitution should be adopted by the

National Assembly or by a Constituent Assembly, by a National Referendum
or by any other method;

The Mwanakatwe Commission’s finding and recommendation on term of

reference No. 9 is to be found at page 204 of the report under the heading
“Mode of adopting the constitution” and the subheading “Legitimacy and the
Constitution”. For the sake of completeness, it is worthwhile quoting the
whole of that finding and recommendation which reads:

“The Government directed the Commission in Term of Reference No. 9 to

recommend the best method of adoption of the Constitution. In the
Commission’s view there are three methods of adoption, namely by the
current legislature, the Constituent Assembly and a national referendum. In
evaluating the best method of adoption the Commission addressed itself to the
need for legitimacy and durability of the Constitution and the views of the
people.

In this latter regard, petitioners were overwhelmingly agreed that the

Constitution should be adopted through the Constituent Assembly and a
national referendum. Adoption by the current legislature was the least
favourable because of the dangers of a one party dominance and a repetition
of the past experiences in formulation of the Constitution.

In agreeing with the overwhelming views of petitioners and the rationale

or reasons advanced, the Commission finds it unavoidable and compelling to
recommend unanimously adoption by a Constituent Assembly and a national
referendum.”

The reaction of the Government to this part is to be found on pages 104 to 106
of the white paper where, after rejecting the recommendations, the
Government pointed out a number of what were called “legal and practical
limitations of the difficulties necessitating a rejection of the recommendation
and they should be read for their full terms and effect. For present purposes,
we quote only the conclusion at page 106 where the Government said:

“As a consequence of the above, the Government has decided:

(a) to encourage public discussion of both the Commission Report and
Draft Constitution in order to arrive at the broadest possible consensus on the
content of the Proposed Constitution

(b) that with the exception of the provisions in the Draft Constitution
touching on Part III of the existing Constitution, all other parts of the Draft, on
 477

which a consensus will have been reached should be enacted by the existing
Parliament.

(c) That provisions in the Draft Constitution seeking to amend, modify

re-enact or replace any provisions relating to the Fundamental Human Rights
will be enacted by Parliament following their approval through a National
Referendum.”

We have taken the trouble to set out the background facts in some detail in
order to place in proper context the legal arguments and issues that arose in
this case. When counsel for the appellant appeared before the learned High
Court judge, he simply relied on the notice of application and supporting
affidavit, together with the provisions of Order 53, and invited the learned
judge to grant leave. The judge declined to do so holding that the two reliefs
specifically claimed, namely Certiorari and Mandamus were not available
against the President and his Cabinet. In the case of certiorari, the learned
judge was of the opinion that it could not lie against a body or authority not
exercising a judicial or quasi-judicial function. Accordingly, it was held that
an order could not be made directing that the records of a Cabinet meeting or
of the President be brought to court for the purpose of quashing them. In the
case of mandamus, the learned judge was of the opinion that the White paper
contained mere proposals which could not be regarded as raising a binding
duty which the court could order anybody to perform.

The major ground of appeal alleged a misdirection on the part of the court
below allegedly by determining the substantive application before leave was
granted and without hearing the parties. It was argued that all that had to be
shown at the stage of considering leave was whether the applicant had a
sufficient interest; whether there was a sufficiently arguable case to merit
investigation at a substantive hearing and whether the application had been
made promptly. Whether one agrees with the learned judge’s argument on
certiorari and mandamus or not, one must agree that the judge was engaged in
discussing the second issue, that it , whether there was any point in granting
leave. Both sides referred us to the observations made by the learned authors
of the White Book, the Rules of the Supreme Court. In vol. 1 of the 1995
Edition at page 864 under Order 53/1-14/30m the learned authors have this to
say:

“The purpose of the requirement of leave is: (a) to eliminate at an early

stage any applications which are either frivolous, vexatious or hopeless and
(b) to ensure that an applicant is only allowed to proceed to a substantive
hearing if the court is satisfied that there is a case fit for further consideration
(see below).

The requirement that leave must be obtained is designed to “prevent the

time of the court being wasted by busybodies with misguided or trivial
 478

complaints of administrative error, and to remove the uncertainty in which

public officers and authorities might be left as to whether they could safely
proceed with administrative action while proceedings for judicial review of it
were actually pending even though misconceived” (R. v Inland Revenue
Commissioners, ex p National Federation of self-employed and Small
Business Ltd (1982). A.C. 617, p.642. (1981)2All E.R. 93, P.105 per Lord
Diplock). Leave should be granted, if on the material then available the court
thinks, without going into the matter in depth, that there is an arguable case
for granting the relief claimed by the applicant (ibid. at p.644/106). In R.v
Secretary of State for the Home Department, ex p. Rukshanda Begum (1990)
c.o.d.107, the court of Appeal held that the test to be applied in deciding
whether to grant leave to move for judicial review is whether the judge is
satisfied that there is a case fit for further investigation at a full interpartes
hearing of a substantive application for judicial review (see par 53/1-14/34).
If, on considering the papers, the Judge cannot tell whether there is or not, an
arguable case, he should invite the putative respondent to attend the hearing of
the leave application and make representations on the question whether leave
should be granted (ibid.).”

We have no reason to disagree with the foregoing. The judge below can not
validly be criticised for forming an opinion on the papers before him without
hearing the parties. whether he was correct or not in his conclusion is a
different question which we are capable of addressing since an appeal
operates as a rehearing on the record. A renewal of the application would also
be to the same effect. To the extent that the learned High Court judge chose
to decide the question whether there was disclosed a sufficient case to warrant
further investigation at a full inter parte hearing by characterising the
functions as a non judicial and the decision as simply a proposal, we choose to
go at large in order to do fuller justice to this case. After all, since Ridge v
Baldwin (1), the distinction between judicial and administrative activities has
been swept away and as a general proposition judicial review now lies against
inferior courts and tribunals and against any persons or bodies which perform
public duties or functions. There is, of course, no blanket immunity from
judicial review even for the President: see Mwamba And Another v Attorney
General (2)

It is trite that judicial review has supplanted the old proceedings for the
prerogative writs of mandamus, prohibition and certiorari. These orders can
now be obtained from acting in an office to which he is not entitled or a
declaration and/or injunction in any matter of a public nature suitable for
judicial review. Rather than look at the prerogative remedies in the old
classical style, it is, in our considered opinion, preferable to adopt the current
trends as proposed by cases such as Council of Civil Service Unions and
others v Minister for the civil Service (3). A formulation which has gained
much acceptance in the commonwealth was that proposed by Lord Diplock
who said, from letter d at page 1026 to letter b at page 1027:
 479

“Judicial review has I think developed to a stage today when without

reiterating any analysis of the steps by which the development has come
about, one can conveniently classify under three heads the grounds upon
which administrative action is subject to control by judicial review. The first
ground I would call “illegality”, the second “irrationality” and the third
“procedural impropriety”. That is not to say that further development on a
case basis may not in course of time add further grounds. I have in mind
particularly the possible adoption in the future of the principle of
“proportionality” which is recognised in the administrative law of several of
our fellow members of the European economic Community; but to dispose of
the instant case the three already well established heads that I have mentioned
will suffice. By “illegality” as a ground for judicial review, I mean that the
decision maker must understand correctly the law that regulates his decision
making power and must give effect to it. Whether he has or not is par
excellent a justifiable question to be decided, in the event of dispute, by those
persons, the judges, by whom the judicial power of the state is exercisable.

By “irrationable” I mean what can by now be succinctly referred to as

“Wednesbury unreasonableness (Associated Provincial Picture Houses Ltd v
Wednsbury Corporation (1948) IKB “”£. It applies to a decision which is so
outrageous in its defiance of logic or of accepted moral standards that no
sensible person who had applied his mind to the question to be decided could
have arrived at it. Whether a decision falls within this category is a question
that judges by their training and experience should be well equipped to
answer, or else there would be something badly wrong with out judicial
system. To justify the court’s exercise of this role, resort I think is today no
longer needed to Viscount Radcliffe’s ingenious explanation in Edwards v
Bairstow (156) Ac 14 of irrationality as a ground for a court’s reversal of a
decision by ascribing it to an inferred though unidentifiable mistake of law by
the decision-maker. “Irrationality” by now can stand upon its own feet as an
accepted ground on which a decision may be attacked by judicial review.

I have described the third head as “procedural impropriety” rather than

failure to observe basic rules of natural justice or failure to act with procedural
fairness towards the person who will be affected by the decision. This is
because susceptibility to judicial review under this head covers also failure by
an administrative tribunal to observe procedural rules that are expressly laid
down in the legislative instrument by which its jurisdiction is conferred, even
where such failure does not involve any denial of natural justice. But the
instant case is not concerned with the proceedings of an administrative
tribunal at all.”

The above has been cited with approval in a number of cases, including the
Zimbabwean case of Patriotic Front Zanu v Minister of Justice, Legal and
Paliamentary Affairs (4). We too respectfully agree with Lord Diplock’s three
 480

grounds on the review ability of decisions taken under, in our case, Executive
prerogative. What we said in the unreported case of Leonard Kafunda v the
Attorney General and Anther (5) which the learned solicitor General cited,
though not so comprehensive, was consistent with this general formulation to
the extent that we had identified some grounds for judicial review based on
want or excess of jurisdiction, error or law, breach of natural justice and legal
unreasonableness.

We heard strong public spirited submissions in support of the Mwanakatwe

Commission’s recommendation and against the Government’s preference as
expressed in the white paper. We have to be guided by the three grounds
enunciated by Lord Diplock and will not be able to say whether from any
other point of view the Government is making a mistake or failing to grasp the
opportunity to fashion a constitution that will not be considered as tailor-made
for some immediate convenience. It would be wholly improper for the court
to make any such political comment or to try and substitute its own view for
that of the Government under the guise of judicial review. Our immediate
task is to resolve, against the backdrop of the three grounds, whether leave
should be granted or if, though obviously not frivolous or vexatious, the
application is legally hopeless such that we are satisfied that there is no case
fit for further investigation at a full inter parte hearing.

We begin by considering whether there is on the face of it an arguable case of

illegality. Section 2(1) of the Inquiries Act, Cap. 181, reads:

“2 (1) The President may issue a commission appointing one or more

commissioners to inquire into any matter in which an inquiry would, in the
opinion of the President, be for the public welfare.”

The Act does not say what the President must do once a commission renders
its report on a matter. However, it is quite clear from the language of the
stature which we have quoted that a commission can only lawfully be
appointed to promote the public welfare. In this regard, a decision arising
from the report of a commission could be challenged quite legitimately if the
decision frustrated the policy and the objects of the Act since a decision which
does not promote but frustrates the object of the law would be an improper
exercise of a discretion: see Padfield v Minister of Agriculture ture,Fisheries
and Food (6). The question which arises is whether the Executive, that is to
say the President and the Cabinet in this case, in exercising their discretion as
set out in the white paper (relevant portions of which we have alluded to)
exceeded the statutory powers under the Inquiries Act? It is obvious that this
is not the case. What is more, the white paper showed that the Government
has not sought to frustrate the object of the Inquiries Act but has suggested to
address the concerns of the applicants and many other citizens by the
decisions at page 106 of the white paper which we have already quoted.
There was in this case no issue of illegality fit to be left to a full hearing.
 481

Next is the question of irrationality. We heard submissions that the decision

not to set up a constituent assembly, which flew in the teeth of the
recommendation of the commission, was unreasonable and was actuated by
bad faith and improper motives. In law, a decision can be so irrational and so
unreasonable as to be unlawful on “Wedsbury” grounds 00 see Associated
Provincial Picture House LTD v Wedsbury Corporation (7). The principle
can be summarised as being that the decision of a person or body performing
public duties or functions will be liable to be quashed or otherwise dealt with
by an appropriate order in judicial review proceedings where the court
concludes that the decision is such that no such person or body properly
directing itself on the relevant law and acting reasonably could have reached
that decision. This principle should be applied with circumspection.

In this regard, the words of Lord Ackner in Reg v Home Secretary, Ex.p.
Bring (8) are rather apt. He said:

“There remains however the potential criticism under the Wednesbury

grounds expressed by Lord Greene M.R. (1948) 1 K.B. 223, 230 that the
conclusion was “so unreasonable that no reasonable authority could ever have
come to it.” This standard of unreasonableness, often referred to as “the
irrationality test,” has been expressed in terms that confine the jurisdiction
exercised by the judiciary to a supervisory, as opposed to an appellate,
jurisdiction. Where Parliament has given to a minister or other person or body
a discretion, the court’s jurisdiction is limited, in the absence of a statutory
right of appeal, to the supervision of the exercise of that discretionary power,
so as to ensure that it has been exercised lawfully. It would be a wrongful
usurpation of power by the judiciary to substitute its, the judicial view, on the
merits and on that basis to quash the decision. If no reasonable minister
properly directing himself would have reached the impugned decision, the
minister has exceeded his powers and thus acted unlawfully and the court in
the exercise of its supervisory role will quash that decision. Such a decision is
correctly, though unattractively, described as a “perverse” decision. To seek
the court’s intervention on the basis that the correct or objectively reasonable
decision is other than the decision which the minister has made is to invite the
court to adjudicate as if Parliament had provided a right of appeal against the
decision that is, to invite an abuse of power by the judiciary.”

A perusal of the relevant documents and consideration of the arguments does

not support that there is an issue of irrationality fit to go to a full hearing.
There was here the danger of the court merely substitution its own views
when the term of reference invited suggestions; the report observed that there
were three possible methods of adoption and recommended on very good
grounds one method. The Government game a number of reasons for wanting
 482

to proceed in a different manner. We can not say such reasons were

“Wednesbury” unreasonable.

This brings us to consider whether there was any procedural impropriety.

This aspect does not arise since the case is not concerned with the proceedings
of an administrative tribunal at all. The Inquiries Act does not lay down any
procedural rules to be observed by the President once a report has been
rendered to him. There was thus nothing fit to be referred for further inquiry
at a full hearing under this ground.

From the documents in this case, there could not have been a problem in
finding that the appellant had a sufficient interest in the matter. The
formulation of a new constitution or causing major amendments to the
existing constitution is a matter of serious interest to all the citizens, including
the members of the political party represented by the appellant. There was
also no issue of promptness or tardiness since the application was made within
a reasonable time after the release of the white paper. The sole issue could
only have been whether or not there was disclosed, to borrow the words of
learned counsel, a sufficiently arguable case to merit investigation at a
substantive hearing.

We suspect that the generally negative and argumentative tone adopted by the
white paper provoked the reasonable apprehension in the appellant that the
Government intended to massage the outcome of the review, to the
disadvantage of the others in the country. However, on the specific points
raised in the case and on the portion of the white paper relevant to the same
which we have earlier quoted, it is apparent that the Government has neither
slammed the door nor taken the position that the people’s views will not find a
place in the final product which would otherwise be discredited and transient,
and not enduring as planned. Above all, for the reasons we have discussed,
although the application was neither frivolous nor vexatious, it was legally an
untenable application on the face of it such that it was not wrong for the judge
below to refuse leave summarily.

For the reasons we have adumbrated, the appeal is unsuccessful. However,

since it raised for the first time a matter of general public importance of this
nature, each side will bear its own costs.

Appeal dismissed.
 483

FREDERICK JACOB TITUS CHILUBA AND ATTORNEY-GENERAL

SUPREME COURT
Sakala, CJ, Lewanika, DCJ, Chirwa, Chibesakunda, Mambilima,
Chitengi, Silomba, JJS, Mushabati and Munthali, Acting/JJS
31st October, 21st November, 2002 and 19th February, 2003
Appeal No. 125 of 2002

Flynote

Constitutional Law - Constitution of Zambia Cap. 1 - Removal of presidential

immunity - whether former Republican President can be subject to criminal
proseccution - Administrative Law - Judicial Review
 484

Cases Referred to:

1. New Plast Industires –v- The Attorney-General SCZ Judgment No. 8 of

2001.

2. O’Reilly –v- Mackman [1982] 3 ALL ER 680.

3. George –v- The Secretary of State for Environment [1979] 38 P & CR

609.

4. R –v- Stokesley (Yorkshire) justices, exparte Bartram [1956] 1 ALL ER

563n.

5. Chitala –v- The Attorney-General [1995/1997] ZR 91.

6. Associated Provincial Picture Houses Limited –v- Wednesbury

Corporation [1947] ALL ER 680.

7. Council of Civil Service Union –v- Minister for Civil Service [1984] 3
ALL ER 935.

8. Patriotic Front ZAPU –v- Minister of Justice, Legal and Parliamentary

Affairs [1986] LRC (Constitution) 672.

9. Attorney-General and the Speaker of the National Assembly –v- The

People SCZ Judgment No. 34 of 1999.

10. Zambia National Holding and United National Independence Party –v-
the Attorney-General of [1994] ZR 22.

Legislation referred to:

1. The Constitution of Zambia, Cap. 1: Articles 37, 43(3), 86(1) and 94(1).

2. The National Assembly (Powers and Privileges) Act, Cap. 12 Section 34.

3. The Supreme Court Rules, (White Book) 1999 Edition.

Order 38/2
Order 53/3
Order 54/8
Order 53/9
Order 53/14/11
Order 53/14/13
Order 53/14/18
 485

Order 53/14/19
Order 53/14/85

Other Works referred to:-

Grahame Aldous and John Alder: Applications for Judicial Review, Law and
Practice of the Crown Office, Second Edition, Chapters 1 and 15.

For the Appellant: Mr. C.K. Banda, State Counsel, of Chifumu Banda and
Associates.
Messrs R. M. Simeza with J. Sangwa of Simeza, Sangwa and
Associates.

For the Respondent: Mr. S. Nkonde, Solicitor- General

Dr. J. B. Sakala, State Counsel, of J.B. Sakala and Company
Mr. J. Jalasi, Principal State Advocate
Mr. M. Haimbe, Senior State Advocate.

JUDGMENT

Sakala, CJ., delivered the judgment of the Court.

At the time we heard this appeal, the members of the court had then a heavy
work load and schedule of other cases which they had to contend with.
Among the cases contributing to the heavy workload were the ongoing
Presidential Election Petition and the Treason Appeal whose judgment is now
pending. These matters had been scheduled to be heard one after the other.
In addition, at the end of hearing this appeal on 21st November, 2002 when
judgment was reserved, the members of the court had also to prepare for a
scheduled session in Ndola. Upon return from Ndola, the court was scheduled
to hear the Treason Appeal which was followed by the continuous sittings in
the Presidential Election Petition hearing. In between the hearings of the
Presidential Election Petition, the court had also to hear the Parliamentary
Election Appeals. The judgments in these appeals are also pending. The
court was very mindful of the public interest this appeal has generated. But
the court was equally very mindful of the constitutional importance of the
appeal of this kind and the magnitude and the need, which was self-evident,
for thorough reflection and consideration of law and facts. As has been said
else where, the novel point raised in the appeal was being discussed for the
first time in Zambia.

We make these observations not for the sake of defending ourselves; but to
make the point that under no circumstances would this court set a “bad
example” as stated in some media and quarters. Indeed, justice delayed is
 486

justice denied. Equally, justice hurried is justice denied also. We find it most
unfortunate that some members of the public took it upon themselves to
champion the cause of speedy justice without ascertaining the facts on the
ground. We do not subscribe to trials by the press.

This is an appeal against the judgment of the High Court dated 30th of
August, 2002, dismissing the appellant’s application for judicial review of the
decision of the National Assembly removing the appellant’s immunity. There
is also a cross-appeal by the respondent. Before the hearing of the appeal
could commence, the court had to resolve three preliminary issues; one was
based on the record itself; and the other two were raised on behalf of the
appellant.

The preliminary issue based on the record, raised by the court itself, arose
from an argument that there were no proceedings on record in respect of the
motion. The record at the time of the argument, showed that nothing took
place on the 16th of August after the court had delivered its ruling in an
application by the 21 interested Members of Parliament; suggesting that the
motion was not heard although the learned judge delivered his judgment on
30th August. The submission on this issue was that the record was incomplete
and that, being the case, the matter be sent back for retrial before another
judge. Subsequently, the proceedings of the 16th August were traced. The
court ruled that the record was complete.

The first preliminary issue on behalf of the appellant related to the cross-
appeal by the 21 interested Members of Parliament. After hearing arguments
on this issue and for reasons contained in our ruling, we struck out the notice
of the cross-appeal and the memorandum of appeal by the 21 Members of
Parliament. The second preliminary issue, also raised on behalf of the
appellant, related to the cross-appeal by the respondent. We dismissed that
issue and granted the respondent leave to appeal out of time.

By his application for judicial review, the appellant prayed for the following
orders and declarations:-

1. An Order of certiorari to remove into the High Court for the purpose of
quashing the said decision of the National Assembly;

2. An Order of Mandamus to oblige the National Assembly to reconsider the

decision to sanction the prosecution of the Applicant as former President of
the Republic of Zambia in line with the provisions of Articles 43(3) of the
Constitution and the rules of natural justice;

3. A declaration that the resolution of the National Assembly to sanction the

criminal prosecution of the applicant is ultra-vires Article 43(3) of the
Constitution hence null and void;
 487

4. A declaration that the Respondents were obliged under the rules of natural
justice to act fairly and afford the applicant an opportunity to be heard in
person on the motion to remove his immunity under Article 43(3) of the
Constitution;

5. A declaration that the procedure adopted by the National Assembly to

table the motion for the removal of the Appellants immunity was irregular;

6. Order that the costs of and occasioned by this application be paid by the
Respondent to the applicant.

The facts and the circumstances of the appeal appear to be common cause.
They are to be distilled from the notice of application to apply for judicial
review, from the affidavit filed in support, from the decision of the National
Assembly, from an excerpt of the speech of the President, from an excerpt
from the Debate on the removal of immunity and from an affidavit in
opposition. The sequence of event are these: On 11th of July, 2002, the
President of the Republic of Zambia addressed the National Assembly. In that
address, allegations against the appellant, as former President were made. The
President also discussed, in his address, the issue of the national assembly
lifting the immunity of the appellant.

On 16th of July, 2002 the National Assembly met, and considered the removal
of the former President’s immunity. After a lengthy and heated debate, the
National Assembly passed a resolution, in exercise of its powers under Article
43(3) of the Constitution, removing the appellant’s immunity. The resolution
removing the appellant’s immunity was in the following terms:

“That in terms of Article 43(3) of the Constitution of Zambia, this House do

resolve that Mr. FJT Chiluba who has held, but no longer holds, the office of
President may be charged with any criminal offence or be amenable to the
jurisdiction of any court, in respect of any act done or omitted to be done by
him in his personal capacity while he held office of the President and that such
proceedings would not be contrary to the interests of the State, and further that
the immunity available to him be removed”.

On 17th of July, 2002, the appellant applied to the High Court for leave to
apply for judicial review of the decision of the National Assembly pursuant to
order 53(3) of the rules of the Supreme Court. The application for leave,
comprising seven pages, set out the decision/resolution of the National
Assembly, the reliefs, and the grounds on which the reliefs were sought
supported by facts set in twelve paragraphs and also set out the grounds for
review comprising nine paragraphs. The application also set out
miscellaneous matters which the court was asked to be aware of, which were
in essence, a list of cases decided by this court and the High court. The
 488

application concluded with a paragraph seeking for a stay of the decision of

the National Assembly and the proceedings pending the determination of the
application for judicial review.

The application for leave to apply for judicial review was supported by an
affidavit sworn by the appellant verifying the facts. The affidavit exhibited
the decision of the National Assembly, a copy of an excerpt from the speech
of the President and a copy of an excerpt from the Debate on the removal of
the immunity of the appellant.

The court granted the order for leave to apply for judicial review on the same
day of the 17th of July, 2002. The Order granted was in these terms:-

“ORDER FOR LEAVE TO APPLY FOR JUDICIAL REVIEW”

UPON HEARING the notice of application for leave to apply for judicial
review dated the 17th day of July 2002 for an order of Certiorari, Mandamus
and Declarations

AND UPON READING the affidavit of FREDERICK JACOB TITUS

CHILUBA the applicant herein sworn on the 17th day of July, 2002, and the
exhibits thereto

AND UPON HEARING Counsel on behalf of the applicant

It is ordered that the application be allowed and that the said Applicant do
have leave to issue Notice of Motion for Judicial review as aforesaid.

THE COURT FURTHER directed that the decision of the National Assembly
to remove the Applicant’s immunity from criminal prosecution for thing done
or omitted to be done in his private capacity whilst occupying the office of
President and or further proceedings related to the said decision IS HEREBY
STAYED pursuant to Rule 3(10)(a) of Order 53 of the Rules of the Supreme
Court until after the hearing and determination of this matter

THE COURT FURTHER directed that the hearing of the said motion be
expedited.

Dated the 17 day of July, 2003”.

On 18th of July, 2002, subsequent to leave being granted, the appellant filed
an originating notice of motion for judicial review. The 29th of July was set
down as the date of hearing the motion. The notice of motion in part reads:
 489

“AND TAKE NOTICE that at the hearing of this motion the applicant will
use the affidavit which accompany this notice and any subsequent affidavits to
be filed.”

However, on 23rd of July, 2002 Messrs MNB filed a notice of appointment as

advocates for 21 Members of Parliament as interested parties in the matter.

On 25th of July, 2002, the respondent filed an affidavit in opposition to the

application for judicial review. On 26th of July, 2002, Messrs MNB, on
behalf of the 21 Members of Parliament, filed summons applying to the court
to dismiss the order for leave to apply for judicial review obtained by the
appellant. Thus, on 29th of July, 2002, instead of the court hearing the motion
for judicial review as set out on the originating notice of motion, the court
proceeded to hear an application by the 21 Members of Parliament. At the
hearing of the application by the 21 Members of Parliament, the respondent to
this appeal stated that they were not a party to the application by the 21
Members of Parliament. At the conclusion of the hearing of that application
by the 21 Members of Parliament the court stated:-

“I have heard and I will have to wait, so I am asking you to write your
Submissions and submit them within the next three days. The Review case is
further stayed. The matter comes up on Friday, 16th August, 2002, in
Chambers.”

On the 8th of August, 2002, a twenty-two page submission was filed on behalf
of the appellant in the application by the 21 members of Parliament. On 15th
of August, a notice to produce documents was filed on behalf of the appellant.
These documents included numerous correspondence and some documents
relating to financial transactions. On the same date, according to the record,
summonses to witnesses James Mtonga, Lt. General Sunday Kayumba and
Mr. Christopher Mulenga were issued for these witnesses to appear before the
court on 16th of August, 2002, at 09.00 hours to give evidence in the
application for judicial review. It must be observed here that the notice of
motion had specifically stated that the appellant would rely on affidavits filed.

On the 16th of August, the court delivered its ruling rejecting the application
by the 21 Members of Parliament and declining to discharge the exparte order
for leave to apply for judicial review granted on 17th of July, 2002. In the
same ruling, the court directed that the application for judicial review be heard
and determined on its merit.

What transpired on the 16th of August, 2002, after the ruling was delivered on
the issue raised by the 21 Members of Parliament, forms the appellant’s first
ground of appeal.
 490

Since the proceedings of 16th of August, form the first ground of appeal, it is
pertinent to set them out in full to appreciate the context in which the issues
for determination arose. The proceedings of the 16th of August, went as
follows:-

“Mr. Nkonde A.G May it please your lordship, I continue appearing for the
Respondent, I am with Mr. Mutembo Nchito of MNB Associates, Mr. J.B.
Sakala and Mr. Chisulo. Mr. Simeza and Mr. John Sangwa appear for the
Applicant. I understand my lord, Mr. Simeza has got an application.

Mr. Simeza Yes my lord, if it may please your lordship, we would like
to be heard on viva voce evidence and we would like to call some witnesses.

Court Gentlemen, following that length ruling and the skeleton

submissions filed by some parties from the Attorney-General’s chambers as
well as those from the other party and I have got a wealth of materials here, so
I refuse to hear viva voce evidence unless there is something that you want to
add or subtract from what you heard from this court. In fact what’s in issue
here is a question of Parliament removing Mr. Chiluba’s immunity which you
have eloquently argued in your skeleton arguments, what are those witnesses
going to sell me, this is a matter of law and I will pass Judgment on the
affidavits on record, the court is not going to allow that which happened in
Parliament following the address of the President, you have eminently and
eloquently argued everything in your affidavits.

[Court addresses Counsels off record]

Afterwards

Mr. Sangwa My lord, we would like to file a further affidavit

Court Yes, you can do so.

ORDER

Court You can file the Affidavit if you wish to do so, 14 days from
today Judgment should be delivered.”

Following the court’s directive to file further affidavit, the record shows that
on 28th of August, 2002, a further affidavit, verifying facts, deposed to by one
Peter Machungwa was filed.

On the same 28th of August, 2002, written submissions on behalf of the

appellant were filed with the court. On behalf of the Attorney-General,
skeleton arguments were also filed.
 491

After the “hearing” of 16th of August, 2002, the court reserved the judgment
14 days from that day. On 30th of August, 2002, the court delivered it
judgment. In the Judgment, the judgment, the learned trial judge reviewed the
sequence of events after granting leave to apply for judicial review. The
learned trial judge examined the reliefs were sought and the grounds for
review. The court also reviewed the affidavit in opposition and the skeleton
arguments on behalf of the Attorney-General.

The learned judge pointed out that he had carefully considered all the matters
and the arguments presented by the parties and that he had already decided
that courts have jurisdiction to inquire into the workings of the National
Assembly where certain issues had been questioned by an aggrieved party.
The court summarised the issue for determination as being: Whether there
was impropriety on the part of the National Assembly, either immunity of the
appellant or in the manner such lifting of immunity was done. Before dealing
with this issue, he learned judge reflected on the basic principles and the scope
underlying the judicial review process.

The learned judge examined the provisions of Article 43(3) of the

Constitution. He concluded that the meaning of the Article is that:-

“The National Assembly may, in its absolute discretion, remove from the
Head of
State, the veil or the protection shield placed on him by the Article for
purposes
of facilitating investigations into his activities while he held the position
of the
President and subsequent prosecution for the same if such investigations
establish the prima facie case against him.”

The learned judge found that there was no impropriety in lifting the
appellant’s immunity for purposes of facilitating investigations into the
allegations made against him in the special Session Address to Parliament on
11th of July, 2002. He also found that the National Assembly’s decision to
lift the appellant’s immunity was not ultra-vires the Constitution.

On the question of method used to lift the appellant’s immunity, the court
observed that the Constitution which confers power on the National Assembly
to lift the immunity of a former Head of State has itself provided the method
namely; that the decision to lift the immunity of the former Head of State
would be by resolution of the House and not by a Select Committee. The
learned judge observed that the High Court could not prescribe a particular
way in which the powers of the National Assembly should be exercised in
making a decision to lift the immunity.
 492

The court rejected, as erroneous, a contention that the appellant has had his
rights to be heard violated by the National Assembly. The court also rejected
the contention that the President usurped the powers of the Director of Public
Prosecutions. The court declined to grant the relief of Certiorari. Hence this
appeal before us.

On behalf of the appellant, a Memorandum of Appeal was filed containing

five grounds of appeal. These are:-

1. That the Learned trial Judge misdirected himself in Law by determining

the motion without a hearing and without considering Affidavit evidence and
Submissions filed in support of the motion.

2. The Learned trial Judge erred in Law when he held that Article 43(3) of
the
Constitution of Zambia is meant to empower the National Assembly to
remove
the immunity of a former Head of State for purposes of facilitating
investigations into his activities while he held the office of President.

3. The Learned Judge in the court below erred in Law when he held that
there
was no procedural impropriety in lifting the Appellant’s immunity based
on
allegations made against him by President Levy Mwanawasa during his
special address to the National Assembly and that the President acted as
Complainant on behalf of the people of Zambia.

4. The Learned Judge erred in Law when he held that there was no
requirement
for the Appellant to be given an opportunity to be heard by the National
Assembly to rebut allegations made against him by President
Mwanawasa
because he will be afforded a hearing during interrogations by the
Police or
Anti-Corruption Commission and later by the courts of law when he
will be
expected to defend himself.

5. The Learned Judge in the court below erred in law when he held that
there
was no procedural impropriety in tabling and circulating the motion for
the
removal of the Appellant’s immunity at less than 24 hours notice since
the
Appellant was not required to be heard by the National Assembly and
 493

therefore suffered no prejudice.

Both Parties filed written heads of arguments supplemented by oral

submissions based on these five grounds of appeal. The first ground of appeal
alleged misdirection in law on the part of the court below allegedly by
determining the motion without a hearing and without considering affidavit
evidence and submissions filed in support of the motion.

The written arguments and submissions on this ground, were that the refusal
to hear the appellant’s motion was a serious misdirection necessitating the
matter to be referred back to the High Court for a hearing; and that the
procedure adopted by the judge in deciding the matter without a hearing is not
supported by any rule. On these arguments, we were referred to Order 53 of
the Supreme Court Rules (White Book), 1999 edition. It was also argued in
the written heads that the rules do provide for a hearing of parties to an
application (Order 53 rule 9); that the rules do allow parties to lodge bundles
for use at the hearing (Order 53/14/11 and Order 53/14/18); that the rules do
require applications for judicial review to be held in open court (Order
53/14/13); and that rules do allow the court to admit fresh evidence in addition
to the affidavit evidence (Order 53/14/85). It was thus a serious negation of
the rules.

Responding to the written heads of arguments on the first ground, written

heads of arguments were also filed on behalf of the respondent. It was
contended on behalf of the respondent that the learned trial judge was on firm
ground when he refused to hear viva voce evidence. It was argued that the
refusal was in full compliance of the procedure for hearing applications for
judicial review as set out in Order 53; and that the learned judge even allowed
the appellant to file further affidavits to be deposed to by the witnesses that
the appellant had desired to call to give viva voce evidence and that the refusal
to allow viva voce evidence did not prejudice the appellant’s case. The
Respondent cited the case of New Plast Industries –v- the Attorney-General
(1) in support of their submissions in particular to a passage where this court
said:-

“Where the evidence in support of an application is by way of affidavit, a

deponent cannot be heard to say that he was denied the right to a hearing
simply because he did not adduce oral evidence.”

In considering the written heads of argument, we have taken cognizance of the

fact that the same were filed before our ruling of 31st of October, 2002, in
which we confirmed, after discovering the proceedings of 16th of August,
2002. that the court had sat on that day to consider the motion. The position
taken on behalf of the appellant before that ruling was there was no hearing at
all on the 16th of August; but that the learned judge simply reserved judgment
on the motion. It was further, the position taken on behalf of the appellant that
 494

the record, without the proceedings of the 16th of August, was incomplete.
As it turned out, these positions could not be supported after the court, on its
own initiative, traced the proceedings of the 16th August. We were satisfied
then, that the record was complete and we accordingly proceeded to hear the
appeal.

We have deliberately taken the trouble to set out in full what transpired in
court on the 16th of August, 2002, in order to place in a proper context the
legal arguments and the issues raised in ground one which is based on what
happened in court on 16th of August.

From what transpired in court on that day, we cannot accept a submission that
the motion was never heard at all. On the other hand, we agree that on that
day, the learned judge refused to hear viva voce evidence contending that:-

“……following that lengthy ruling and the skeleton submissions filed by

the parties I have got a wealth of materials here, so I refuse to hear viva voce
evidence…………..”

After the court declined to hear viva voce evidence, Mr. Sangwa, for the
appellant, informed the learned judge that they would like to file a further
affidavit. The court granted the request. The record shows that one, Peter
Machungwa, did actually file a further affidavit. Whether the learned judge
was correct or not in his ruling refusing to hear viva voce evidence is a
different question from saying that there was no hearing at all in the court
below on that day in question.

In his oral submissions on behalf of the appellant, Mr. Banda contended that
the application to call viva voce evidence was made in the light of the special
circumstances of the case in that it hinged on the powers of Parliament
pursuant to Article 43(3) of the Constitution and because a case of this nature
had never been litigated upon in Zambia or in the Commonwealth.

The other special circumstance contended by Mr. Banda was that the case
emanated from powers of Parliament against a person who had earned himself
immunity; and the decision affecting him was made in his absence, on the
basis of allegations made by a sitting President to which he, the appellant, had
no opportunity to offer his side of the story. It was Mr. Banda’s spirited
submission that on the special circumstances of this case, viva voce evidence
should have been allowed. In support of these arguments and submissions on
ground one, Mr. Banda referred us to several passages in a book entitled
APPLICATIONS FOR JUDICIAL REVIEW Law and Practice of the Crown
Office 2nd edition by Grahame Aldous and John Alder. Mr. Banda also cited
the case of O’Reilly –v- Mackman (2). Mr. Banda contended that the justice
of this particular case demanded that the appellant should have been allowed
to adduce viva voce evidence which would have established that the acts
 495

purported to have been committed by him did not warrant the removal of his
immunity. He concluded his oral submissions on ground one by praying that
the case be remitted to the High Court to enable the appellant present his side
of the story.

Responding to the oral submissions on ground one, Dr. Sakala, on behalf of

the respondent, submitted that the court below rightly decided to proceed by
way of affidavit evidence which contained facts tendered by the deponents of
the affidavits. He submitted that the question of the case being one of special
circumstances was not raised in the court below. Dr. Sakala also submitted
that the court properly exercised its discretion to do away with viva voce
evidence.

We have carefully examined the proceedings of the 16th August. They were
very short. According to these proceedings, Mr. Simeza did not advance any
reason for the application to call more witnesses. The court gave reasons for
not accepting viva voce evidence. We agree with the submission on behalf of
the respondent that the question of special circumstances of the case
warranting viva voce evidence was never raised in the court below.

We have also very anxiously addressed our minds to the oral arguments and
submissions on ground one of appeal by both parties. The thrust of the
submissions centers on the nature of evidence on applications for judicial
review; whether it should be by way of affidavit only or by way of both
affidavit and viva voce evidence. But before delving into the issue of the
nature of the evidence on applications for judicial review, a point must be
made at this juncture that the hearing of an application for judicial review
does not start from the day set for the motion. The application starts with a
notice of application for leave to apply for judicial review accompanied by an
affidavit verifying the relied upon, which frequently are not in dispute. The
requirement of an affidavit commits an applicant to stating the basis of his
case on oath. Thus, the affidavit must contain all the basic factual material on
which reliance will eventually be placed. The affidavit forms the basis of the
applicant’s application for judicial review together with the notice of motion.

The scope of judicial review must also be understood. In volume 1 of the

Supreme Court Practice, 1999 edition, under Order 53/14/19, subheading
entitled nature and scope of judicial review page 902, the authors state:-

“The remedy of judicial review is concerned with reviewing, not the merits of
the decision in respect of which the application for judicial review is made,
but the decision-making process itself. ‘It is important to remember in every
case that the purpose of [the remedy of judicial review] is to ensure that the
individual is given fair treatment by the authority to which he has been subject
and that it is not part of that purpose to substitute the opinion of the judiciary
or of individual judges for that of the authority constituted by law to decide
 496

the matters in question.’ (Chief Constable of North Wales Police –v- Evans
[1982] 1 W.L.R. 1155 at 1160; [1982] 3 ALL E.R. 141 at 143, per Lord
Hailsham L.C.). Thus, a decision of an inferior court or a public authority
may be quashed (by an order of certiorari made on an application for judicial
review) where that court or authority acted without jurisdiction, or exceeded
its jurisdiction, or failed to comply with the rules of natural justice in a case
where those rules are applicable, or where there is an error of law on the face
of the record, or the decision is unreasonable in the Wednesbury sense (see
para. 53/14/27). The court will not, however, on a judicial review application
act as a ‘court of appeal’ from the body concerned; nor will the court interfere
in any way with the exercise of any power or discretion which has been
conferred on that body, unless it has been exercised in a way which is not
within that body’s jurisdiction, or the decision is Wednesbury unreasonable.
The function of the court is to see that lawful authority is not abused by unfair
treatment. If the court were to attempt itself the task entrusted to that
authority by the law, the court would, under the guise of preventing the abuse
of power, be guilty itself of usurping power (Chief Constable of North Wales
Police –v- Evans [1982] 1 W. L. R. 1155 AT 1173; [1982] 3 ALL E.R. AT
154, per Lord Bright man).”

The authors of the book entitled: APPLICATIONS FOR JUDICIAL

REVIEW, already referred to above, make the point that the basis of the
power of the High Court to review decisions of inferior courts, or public
bodies or tribunals is that it can make such bodies do their duty and stop them
doing things which they have no power to do.

Thus, the High Court cannot determine, in an application for judicial review,
whether the decisions by such bodies are right or wrong on their merits. It is
now settled that the procedure under order 53 is thus not an avenue for appeal
against decisions of such bodies. We have no reason to disagree with this
proposition.

Having found that the record of appeal was complete; that there was a hearing
on 16th of August, 2002; and that the court rejected a request for viva vice
evidence; we now turn to consider the issue of the nature of evidence on
applications for judicial review. The starting point, in our view, is to examine
the general rule. The general rule is that the High court may admit evidence
in applications for judicial review as along as it is relevant to the issues before
it. Aldous and Alder, in their book, make the point that it is a fundamental
principle of administrative law that a public body’s power to make a decision
includes the power to choose between different options and even to make
decision which, on their merits, may appear wrong or mistaken to a different
body. The emphasis is that the purpose of judicial review is not to provide an
appeal procedure against decisions of public bodies on their merits but to
control the jurisdiction of public bodies by ensuring that they comply with
their duties or by keeping them within the limits of their powers. For instance,
 497

when the High Court is reviewing a decision of a public body it will not admit
evidence which is relevant to whether the decision is a reasonable one; but it
will permit evidence which is relevant to whether the decision is one which
the body had power to make or whether it was made in circumstances in
which a reasonable body could have made it.

We are in total agreement with these propositions on the general rule. From
the foregoing propositions, we are satisfied that there are limits on the powers
of the High Court in an application for judicial review. Strictly speaking, it is
never open to the High court to open an investigation of facts and admit
“fresh” evidence in reviewing the acts and decisions of inferior bodies or
public bodies. This position makes the distinction that when the High Court
sis in an appellate capacity, it may be permitted to consider the merits of a
decision. But when it sits in an application for judicial review, the High Court
is not permitted to consider the merits of a decision.

The practice in Zambia and in England is that in all applications for judicial
review, the principal source of evidence is from affidavits. But the court has
power to order that a deponent and not any other witnesses, attend to give oral
evidence and to be cross-examined (Order 53 rule 8 and order 38 rule 2). It is
important to emphasize the point that the only witnesses that may give viva
voce evidence on applications for judicial review are the deponents of the
affidavits on record.

The practice in England, which we follow here in Zambia, is that court are
very reluctant to order cross-examination on applications for judicial review.
In the case of George –v- The Secretary of State for Environment (3) at page
1615, Lord Denning, then the Master of Rolls, gave three reasons for the
judicial reluctance to order cross-examination in cases of judicial review:-
These were stated as follows:-

(i) that because the affidavits will usually speak as to what took place before a
judicial or quasi-judicial body they may have to be sworn by a planning
inspector or a magistrate, or someone of that kind. Since it is undesirable that
such a person should be subjected to cross-examination, the applicant should
not be liable to cross-examination either;

(ii) experience shows that on procedural questions arising on judicial review

there is very little conflict on the affidavits; and

(iii) if cross-examination is permitted there will be a temptation to try and

undermine the actual findings of the inferior body.

Lord Goddard, C.J., in the course of the main judgment, in R –v- Stokesley
(Yorkshire) justices, exparte Bartram (4), where fraud was alleged, explained
further the judicial reluctance to order cross-examination in these terms:-
 498

“As this was such a remarkable case, and there was this unfortunate incident
of an altered order having been put before the court, on which, at any rate to
some extent, the court relied, we accordingly ordered that the deponents
should attend in court today. They have attended, and they have been cross-
examined. It is the first time in my experience and, I think, the first time in
anyone else’s experience in Crown Practice matters, viz., applications for
prerogative orders or writs, that cross-examination has ever taken place. I do
not want this to be thought to be an easy precedent. We allowed cross-
examination in this case because it is one of a very remarkable character.
[HIS LORDSHIP reviewed the evidence and concluded that the application
failed.]”

The emphasis in all these authorities is that in applications for judicial review,
the evidence is by affidavit. And if need arises for viva voce evidence, it is, in
the discretion of the court to order the deponents of those affidavits to give
that evidence.

In the instant case, we are satisfied that the learned judge cannot validly be
criticized for rejecting the application for viva voce evidence and for not
hearing the parties for the reasons he stated. And we must add that when we
looked at the proposed viva voce evidence, we found that it was irrelevant
because it was intended to rebut the allegations against the appellant and had
nothing to do with the judicial review proceedings. Indeed, from the record,
the learned judge had a wealth of material before him. Whether he was
correct or not in his conclusion is a different question which we are capable of
addressing since an appeal operates as a rehearing on the record. But for the
reasons we have discussed, we reject the prayer to remit this case to the High
Court. The first ground of appeal therefore fails.

We have discussed ground one at great length because some of the issues
considered in that ground have a bearing on the issues raised in the remaining
other grounds of appeal.

Grounds two and three were argued by Mr. Sangwa as one ground. The first
part of this ground alleges that the trial judge erred in law when he held that
Article 43(3) of the Constitution of Zambia is meant to empower the National
Assembly to remove the immunity of a former Head of State for purposes of
facilitating investigations into his activities while he held the office of
President. The second part alleges misdirection on the part of the learned
judge when he held that there was no procedural impropriety in lifting the
appellant’s immunity based on allegations made by the President.

On these two grounds argued as one, we were taken through ten pages of
written heads of argument in addition to oral submissions. We heard
arguments ha the court below seriously misdirected itself on the issue of
 499

illegality as a ground for judicial review and the import of Articles 43(3) of
the Constitution. We also heard an argument that the decision of the National
Assembly to sanction the prosecution of the appellant was illegal. It was also
argued that the National Assembly did not understand correctly the provisions
of Article 43(3) and hence failed to give effect to it as the steps taken or
followed to sanction the prosecution of the appellant wee not consistent with
the Constitution. According to Counsel, this was evidenced from the
Parliamentary Debates in which none of the members of Parliament made
reference to the language of Article 43(3). Mr. Sangwa complained that the
resolution, the subject of the judicial review, was formulated, presented to the
House and passed within three hours. He submitted that this was contrary to
the practice and procedure of the house which requires motion to be
formulated and distributed to members twenty-four hours before debate.

Mr. Sangwa conceded that there was no procedure to be followed by the

National Assembly when invoking the powers under Article 43(3). But he
contended that whatever had to be done, had to be consistent with the
provisions of the Constitution. He did not allude to those provisions.

He pointed out that the National Assembly acted on the representations by the
President, which were in form of an address to the House in which the
President outlined a number of allegations against various people who served
under the appellant. Counsel argued that in his address, the President
misdirected the house on the question as to who should determine whether one
should be prosecuted or not. Mr. Sangwa then went to great length citing the
powers of the Director of Public Prosecutions under the Constitution. He
submitted that by calling fro the prosecution of the appellant, the President
acted illegally and usurped the powers of the Director of Public Prosecutions.

Further arguments by Mr. Sangwa were that there are pre-conditions that must
be satisfied before the National Assembly can pass a resolution under Article
43(3). He argued that the Hon. Members did not examine the language of the
article and consequently failed to satisfy the pre-conditions. He submitted that
a former President can only be prosecuted or be amenable to the criminal
jurisdiction of a court for: things he did or omitted to do in his private capacity
and the National Assembly must make a determination that the prosecution
would be in the interest of the State. He submitted that such a determination
can only be made if the nature of the charges is known at the time the National
Assembly is being called to invoke its powers under Article 43(3). To fortify
his arguments, Mr. Sangwa outlined the historical background of Article 43(3)
from the independence Constitution of 1964 to the 1991 Constitution while
citing the various Constitution Commissioners’ recommendations. Therefore,
Counsel set out the functions of the President. Then at great length, he
outlined the various allegations made against the appellant in the President’s
address. Counsel submitted that the things done or omitted to be done by the
appellant in his private capacity which may be the subject of the criminal
 500

prosecution or form the basis for bringing him before the criminal jurisdiction
of the court, fell out side his functions.

Mr. Sangwa concluded his submissions on grounds two and three by

contending that the resolution of the National Assembly was null and void for
illegality as the National Assembly did not give effect to the provisions of
Article 43(3).

The short response to these submissions by Dr. Sakala, on behalf of the

respondent, was that Article 43(3) is very clear in its ordinary context by
stating that immunity of a former Head of State shall be lifted by a resolution
of the National Assembly. Dr. Sakala contended that it would be incorrect to
import into Article 43(3) a particular procedure to be followed by the National
Assembly in lifting the appellant’s immunity. According to Dr. Sakala, for
purposes of investigations, the National Assembly had to remove the
immunity of the appellant. On procedural impropriety, Dr. Sakala pointed out
that there was vigorous debate the resolution was passed. He submitted that
the National Assembly had the right to choose its own method of dealing with
the matter. This concluded the parties’ submissions and arguments on
grounds two and three.

We have very carefully examined the judgment of the learned judge. We have
also anxiously considered the ingenious submissions on the two grounds
argued as one. The upshot of Mr. Sangwa’s detailed and resourceful
submissions, which included a search into the history and origins of Article
43(3) of the Constitution, is that the resolution of the National Assembly,
lifting the appellant’s immunity, was null and void for illegality and non-
compliance with Article 43(3) of the Constitution.

Before dealing with the issue of illegality and non-compliance with Article
43(3) of the Constitution, the learned judge, rightly so, in our view, reflected
on the basic principles underlying the judicial review process. He considered
the objectives and the scope of the remedy of judicial review and examined
some of the decided cases on the subject including authors on the same
subject.

In dealing with ground one, we, too, examined the same principles and the
same authorities. We alluded to the fact that the remedy of judicial review is
concerned with reviewing the decision-making process itself and not the
merits of the decision. We noted that in judicial review proceedings, the court
is not acting as a court of appeal.

To determine whether the resolution of the National Assembly was null and
void for illegality, the starting point must be to review the decision-making
process itself. The learned trial judge took, for his starting point, Article 43(3)
 501

of the Constitution. We find no valid reasons for criticizing his approach.

After setting out Article 43(3), the learned judge stated:-

“The import of this Article is quite plain and straightforward. It simply means
what it says – that the National Assembly may, in its absolute discretion,
remove from the former Head of State, the veil or the protective shield placed
on him by the Article for purposes of facilitating investigation into his
activities while he held the office of President and subsequent prosecution for
the same if such investigations establish a prima facie case against him. There
is simply no other meaning apt enough that can be placed on this Article.”

In his oral submissions, Mr. Sangwa attacked this finding, contending that
immunity is against prosecution and that its lifting is not for the purposes of
facilitating investigations. It was Mr. Sangwa’s submissions that nothing
stops the authorities to investigate the appellant even without lifting his
immunity. We agree with Mr. Sangwa. The lifting of immunity as envisaged
in the article is not for purposes of facilitating investigations but for
facilitating prosecution. Thus, under immunity, the appellant can still be
investigated, but he cannot be prosecuted because, immunity is his shield.

It would appear to us that Dr. Sakala too, laboured under the wrong
impression that the appellant cannot be investigated before removal of his
immunity. This, in our view, is a mistaken and incorrect understanding of the
immunity as provided in Article 43(3).

Mr. Sangwa further argued that Article 43(3) sets out pre-conditions before a
prosecution against a former Head of State can be initiated. He submitted that
before immunity can be lifted, charges must be known and must exist. He
submitted that this was not the case here. We are inclined to conclude that
these arguments take us into considering the merit of the decision of the
National Assembly. This, in our view, would be against the spirit, the scope
and the purpose of the remedy of judicial review. We decline to address
ourselves to these arguments, forceful as they may be though. However, the
plain meaning of Article 43(3) does not stipulate that specific charges have to
be presented to the National Assembly before immunity of the former
President can be removed. Immunity can be removed even for a purpose of
making a former President amenable to the criminal jurisdiction of the court.
Amenability to criminal jurisdiction can envisage allegations of criminal
conduct, which in essence, was the gist of the President’s address to the
National Assembly.

In deciding on whether there was here illegality and procedural impropriety in

the lifting of the appellant’s immunity based on the allegations made against
him by the President, we have to be guided, as we said in Chitala –v- The
Attorney-General (5) by the three grounds enunciated by Lord Green, but at
the same time being mindful of not trying to substitute our own view for that
 502

of that of the National Assembly under the guise of judicial review. The three
grounds, enunciated by Lord Green in Associated Provincial Picture Houses
Limited –v- Wednesbury Corporation (6), are illegality, irrationality and
procedural impropriety. These principles have been further expounded in the
case of Council of Civil Service Union –v- Minister for Civil Service (7) by
Lord Diplock at pages 950-951 when he stated:-

“Judicial review has I think developed to a stage today when, without

reiterating any analysis of the steps by which the development has come
about, one can conveniently classify under three heads the grounds on which
administrative action is subject of control by judicial review. The first ground
I would call ‘illegality’ the second ‘irrationality’ and the third ‘procedural
impropriety’. That is not to say that further development of a case by case
basis may not in course of time add further grounds. I have in mind
particularly the possible adoption in the future of the principle of
‘proportionality’ which is recognized in the administrative law of several of
our fellow members of the European Economic Community; but to dispose of
the instant case the three already well-established heads that I have mentioned
will suffice.

By ‘illegality’ as a ground for judicial review I mean that the decision-maker

must understand correctly the law that regulates his decision-making power
and must give effect to it. Whether he has or not is par excellence a justifiable
question to be decided, in the event of dispute, by those persons, the judges,
by whom the judicial power of the state is exercisable.

By ‘irrationality’ I mean what can by now be succinctly referred to as

‘Wednesbury unreasonableness’ (see Associated Provincial Picture Houses
Limited –v- Wednesbury Corporation [1947] 2 ALL ER 680, [1948] I KB
223). It applies to a decision which is so outrageous in its defiance of logic or
of accepted moral standards that no sensible person who had applied his mind
to the question to be decided could have arrived at it. Whether a decision falls
within this category is a question that judges by their training and experience
should be well equipped to answer, or else there would be something badly
wrong with our judicial system. To justify the court’s exercise of this role,
resort I think is today no longer needed to Viscount Radcliffe’s ingenious
explanation in Edwards (Inspector of Taxes) –v- Bairstow [1955] 3 ALL ER
48, [1956] AC 14 of irrationality as a ground for a court’s reversal of a
decision by ascribing it to an inferred though unidentifiable mistake of law by
the decision maker. ‘Irrationality’ by now can stand on its own feet as an
accepted ground on which a decision may be attacked by judicial review.

I have described the third head as’ procedural impropriety’ rather than failure
to observe basic rules of natural justice or failure to act with procedural
fairness towards the person who will be affected by the decision. This is
because susceptibility to judicial review under this head covers also failure by
 503

an administrative tribunal to observe procedural rules that are expressly laid

down in the legislative instrument by which its jurisdiction is conferred, even
where such failure does not involve any denial of natural justice. But the
instant case is not concerned with the proceedings of an administrative
tribunal at all’.

The above has been cited with approval in a number of cases, including the
Zimbabwean case of Patriotic Front ZAPU –v- Minister of Justice, Legal and
Parliamentary Affairs (8). We too, respectfully agree with Lord Diplock’s
three grounds on review-ability of decisions of public bodies.

We begin with ‘illegality’. To succeed under this ground, the appellant has to
prove that the decision of the National Assembly contravened or exceeded the
terms of the law which authorized the making of that the decision pursues an
objective other than that for which the power to make the decision was
conferred. By looking at the wording of the power and the context in which
the power is to be exercised, the court’s ultimate function is to ensure that the
exercise of the power is within or intra-vires the statute. Article 43(3) states:-

“(3) A person who has held, but no longer holds, the office of President shall
not be charged with a criminal offence or be amenable to the criminal
jurisdiction of any court, in respect of any act done or omitted to be done by
him in his personal capacity while he held office of President, unless the
National Assembly has, by resolution, determined that such proceedings
would not be contrary to the interests of the State.”

This Article, in our view, sets out the parameters in which the power to lift the
immunity of a former President is to be exercised. The challenge for the
drafters of this article was to bring out in clear words the power and the
circumstances in which it was to be exercised. The former President in terms
of this article must be alleged to have committed some acts while in office
which amount to criminal offences or would make him amenable to the
criminal jurisdiction of the court and it is in the interest of the state that his
immunity be lifted. The facts leading to the removal of the appellant’s
immunity are common cause. There was before the National Assembly the
address by the President. In the address, various allegations were made
against the appellant and others. It is not for the court, in an application for
the remedy of judicial review, to determine the truthfulness or the falsity of
those allegations. The discretion conferred on the National Assembly by
Article 43(3) is wide and it can be validly exercised by resolution once the
National Assembly has before it allegations showing prima facie criminal
conduct to the Assembly’s satisfaction. Indeed, there were emotions and
heated debate before the resolution was passed. But we cannot infer any
illegality of the decision they arrived at. We are therefore satisfied that given
the address of the President to the National Assembly, the National Assembly
 504

properly exercised its powers under Article 43(3). The question of ‘illegality’
did not arise.

In the same vein, we find nothing irrational in the manner the resolution was
passed. It cannot be seriously argued that the decision of the National
Assembly was “so outrageous in its defiance of logic or of accepted moral
standards that no sensible tribunal which has applied its mind to the question
to be decided could have arrived at it.” The decision of the National
Assembly here, was based on serious and unprecedented allegations of
criminal conduct in this country. And no doubt, these are the allegations
which were taken into account before the decision was arrived at.

On ‘procedural impropriety’ we find that the issue does not arise because the
article itself provides for the procedure for lifting immunity. In any event,
before the immunity was lifted, the National Assembly debated the procedure
to be followed. The fact that there was lengthy debate before the resolution
was finally passed did not suggest any procedural impropriety.

While we agree that removal of immunity cannot be for purposes of

facilitating investigations, we do not agree that Article 43(3) means that
immunity cannot be removed unless specific charges have been framed.
Grounds two and three are therefore not successful.

Ground four alleged that the learned judge erred in law by holding that there
was no requirement for the appellant to have been given an opportunity to be
heard by the National Assembly. Counsel referred us to numerous authorities
on the requirement for an opportunity to be heard. We have anxiously
considered these authorities. But after looking at the provisions of Article
43(3) we find nothing in these provisions which suggest to us that before
lifting the immunity of a former President the National Assembly should give
a former President the opportunity to be heard. The provisions of Article
43(3) should not be read in isolation but together with the other relevant
provisions in the Constitution. The other relevant provisions we find are those
in Article 37 dealing with impeachment of the President. Unlike the
provisions dealing with removal of immunity of a former President, which do
not give the right to the President specifically gives the President the right to
be heard and to be represented by Counsel. Which means that while in Article
37 the President has the right to be heard, it was never the intention of the
framers of the Constitution that when the issue of removal of immunity of a
former President arises, the former President would have the right to be heard.
Of course, one cannot seriously argue that Article 43(3) and Article 37
conflict with each other because Constitutional provisions cannot contradict
each other.

The rationale for this arrangement is very easy to find. In impeachment

proceedings, the National Assembly has, after going through the whole
 505

process, power to finally determine the fate of the President by its own
resolution. The National Assembly can either “acquit” the impeached
President or remove him from office. In proceedings to remove the immunity
of a former President, the National Assembly has no power to call upon a
former President to give evidence to rebut allegations against him before
removal of his immunity by the National Assembly. What action would the
National Assembly take after hearing a former President? The National
Assembly cannot “Acquit” or make a finding that there is a prima facie case
made out against a former President and should therefore be charged with a
criminal offence(s) because the National Assembly has no such powers under
the Constitution. The power to determine the guilt or innocence of a person in
a criminal matter is assigned to the courts by the Constitution. For the reasons
we have given above we hold the view that the provisions of Article 43(3) are
very clear. We cannot imply anything in these provisions. Nor can we bring
into the interpretation of these provisions glosses and interpolations derived
from doctrine or case law. None of the numerous cases cited to us gives
identity and visibility to any principle of law which persuades and entitles us
to imply anything in a constitutional provision which is very clear. We are
satisfied that the framers of the constitutional never intended that on removal
of immunity, a former President should be heard.

Indeed, Mr. Simeza quite properly conceded that Article 43(3) makes no
provision for hearing of a former President whose immunity is to be removed.
We agree with him. But Counsel contended that the same article does not
make provision for the incumbent President to initiate the removal of
immunity of the former President.
This argument begs the question. The truth is that there is no provision for an
individual to be heard in Parliament. Above all, it is not in all cases where
rules of natural justice are always applicable. Grounds four too fails.

Ground five alleges procedural impropriety. This we have discussed in

grounds two and three. While it is not in dispute that there was haste in
circulating the motion, it is not correct, as argued, that the National Assembly
is obliged to religiously follow its own rules of procedure (Article 86). We
are satisfied that there was no impropriety in the manner the motion was
circulated and adopted. Ground five also fails.

Before concluding the discussion on the appeal, we turn to consider the cross-
appeal by the respondent. The notice of cross-appeal reads as follows:-

“TAKE NOTICE that the Respondent being dissatisfied with the judgment of
judge ANTHONY NYANGULU given in the High Court on 30th August,
2002 and ruling of 16th August, 2002 intends to cross appeal to the Supreme
Court against the judgment in so far as it decides that Section 34 of the
National Assembly (Powers and Privileges) Act is inconsistent with the
provision of Article 94(1) of the constitution.”
 506

The ground of appeal in the memorandum of the cross appeal alleges an error
in law on the part of the learned judge when he held that Section 34 of the
National Assembly (Powers and Privileges) Act is inconsistent with the
provisions of Article 94(1) of the constitution of the Republic of Zambia.

The short background leading to the cross-appeal is that 21 Members of

Parliament applied to be joined to the proceedings brought about by the
appellant for judicial review as interested parties pursuant to Order 53 rule
9(1) of the Rules of the Supreme Court. The 21 Members of Parliament
sought to set aside the leave grated to the appellant to apply for judicial
review. It was then the contention of the 21 Members of Parliament that since
the appellant in his substantive application was challenging what transpired in
the National Assembly, his application should fail as Section 34 of the
National Assembly (Powers and Privileges) Act has ousted the jurisdiction of
the High Court to inquire into the affairs of the National Assembly and
whatsoever it does. It was further the contention of the 21 Member s of
Parliament that Article 86(1) of the Constitution has conferred authority upon
the National Assembly to determine its own procedure.

It is in the light of the foregoing arguments that the High Court considered
Section 34 of the National Assembly (Powers and Privileges) Act. In dealing
with the arguments based on Section 34 of the Act, the learned judge had this
to say:-

“If it is indeed the contention on behalf of the 21 Members of Parliament that

this court should court should dissolve the order for grant of leave to apply for
judicial review granted on 16th July, 2002, on the strength of the provision of
Section 34 of the National assembly (Powers and Privileges) Act, that this
court cannot look into the manner in which the resolution of the National
Assembly ‘lifting’ the Applicant’s immunity was arrived at and satisfy itself
whether indeed it was made pursuant to the provision of Article 43(3), it is the
finding of this court that the said section is inconsistent with the provisions of
Article 94(1) of the constitution. It is the Court’s view that to the extent that
the said section purports to limit the jurisdiction of the High Court, it is null
and void and therefore f no effect on this Court.”

On behalf of the respondent written heads of argument in the cross-appeal

were filed supplemented by oral arguments and submissions.

The advocates for the appellant filed detailed written heads of argument in
response to the cross appeal. But in court, after hearing the arguments of Mr.
Jalasi on the cross-appeal, Mr. Sangwa, on behalf of the appellant, informed
the court that there was no need for him to argue on the cross-appeal.
 507

The gist of the submissions on the cross-appeal is that, the learned judge’s
holding on Section 34 had the effect of striking out that section. It was
contended that a legislation in Zambia cannot be impugned by way of judicial
review proceedings but by way of a petition. Mr. Jalasi referred the court to
the case of Attorney-General and the Speaker of the National Assembly –v-
The People (9). He submitted that Section 34 is not inconsistent with the
provisions of Article 94(1) of the Constitution. Mr. Jalasi also referred us to
the case of Zambia National Holding and United National Independence Party
–v- The Attorney-General (10) where this court discussed the meaning of the
word “unlimited” jurisdiction of the High Court.

Our short answer to the cross-appeal is that the learned judge was never
invited to make a determination on the validity of section 34 of the National
Assembly (Power and Privileges) Act Cap.12 of the Laws of Zambia. The 21
Members of Parliament only asked him to set aside the order of the court
granting leave to the appellant to apply for judicial review. He was not asked
to strike out section 34.

In conclusion, for the reasons we have discussed in the appeal, although the
application for judicial review was not frivolous nor vexatious, all the five
grounds having failed, the whole appeal also fails. The whole appeal is
accordingly dismissed.

The cross-appeal on the other hand, is allowed, we set aside the portion of the
learned judge’s ruling which has the effect of striking out Section 34 of the
National Assembly (Power and Privileges) Act.

Since the appeal raised, for the first time, a matter of general public
importance, each aside will bear its own costs.

WYNTER M KABIMBA v THE ATTORNEY GENERAL AND

LUSAKA CITY COUNCIL (1996) S.J. (S.C.)

SUPREME COURT
GARDNER, A.C.J., SAKALA A.D.CJ., AND CHAILA, J.S.
31ST MAY, 1995, 14TH JUNE, 1995 AND 22ND JUNE 1995.
S.C.Z. JUDGMENT NO. 13 OF 1996

Flynote

Practice - Stay of proceedings - Court's jurisdiction where State Proceedings

Act cap 92 precludes granting of injunctions against State - Where
proceedings are by way of judicial review.

Headnote
 508

In an application for the stay of an order made by a High Court judge

discharging an injunction against the second respondent and lifting a stay of
proceedings granted against the first respondent the Court was required to
consider whether it had jurisdiction to order a stay of proceedings where the
State Proceedings Act cap.92 precluded the granting of injunctions against
the state.

Held:

That what was sought in the instant case was just as much a stay as it would
be in relation to a decision or judgment of an inferior court: it was not
properly described as an injunction which was an order directed at a party
to litigation. The Court held accordingly that it was empowered to order the
stay.

Appeal allowed.

Cases referred to:

1. R v Secretary of State for Education and Science Councty Council (1991)
1 All E.R. 282
2. Pactortame Limited v Secretary of State for Transport (1989) 2 All ER
692
3. Zambia National Holdings Company Limited and United National
Independence Party v The Attorney General S.C.Z. Judgement No. 3 of 1994

For the appellant: R M Simeza of Sangwa and Associates

For the respondents: A G Kinariwala Principal State Advocate
L.Mwanawasa of Mwanawasa and Company

_______________________________________
Judgment

GARDNER, AC.J .: delivered the Judgment of the court.

This is an application for the stay of an order made by a High Court judge
discharging an injunction against the second respondent and lifting a stay of
proceedings against the first respondent.

The facts of the case are that the applicant is employed as Town Clerk by the
second respondent, and on the 17th February, 1995, the Minister of Local
Government and Housing wrote to the applicant informing him that in
exercise of powers vested in the Minister under Regulation 21 Proviso (ii) of
the Local Government Regulation 1993, the applicant was thereby transferred
to Kitwe city Council with immediate effect. The applicant wrote to the
Minister appealing against that decision but the appeal was refused.
 509

The applicant instituted proceedings in the Industrial Relations Court but

discontinued proceedings for judicial review in the High Court. The High
Court granted leave to issue the application for judicial review in at the came
time the applicant was granted a stay of the order of the transfer pending the
hearing. The applicant also applied for and was granted, ex parte, an
injunction against the second respondent preventing the second respondent
from transferring the applicant and ordering that the second respondent should
not interfere with the applicant’s performance of his duties as Town Clerk for
Lusaka City Council.

The respondents applied for the discharge of the injunction and the lifting of
the stay of the order of transfer, and the learned trial judge granted these
orders as requested. The applicant has appealed to the Supreme Court against
the orders and has applied to this court for a stay of the orders pending the
hearing of the appeal. The application has been referred to this court by a
single judge.

The court was informed that the respondents intended to cross appeal against
some of the findings made by the learned High Court judge, but we indicated
that, at this stage of the proceedings, we were concerned solely with the
application for a stay of the judge’s order pending the appeal.

Mr Mwanawasa on behalf of the second respondent argued a number of points

which may still be the subject of the judgement of the lower court. In
particular in dealing with the joining of the second respondent in an
application for judicial review when the only claim against the respondent is
for an injunction I assume that the learned trial judge treated that application
as having been begun by writ in terms of Order 53 Rule 3(10) (b); or
otherwise but this was a matter for the court below and some other course may
have been taken or presumed to have been taken in order to regularise the
second respondent’s joining in the action. In dealing with the application
before this court I will endeavour to avoid pre empting any decision which
may be made by the learned trial judge. However, there is one issue which
has already been disposed of by the court below and that concerns the court’s
juridiction to order stays of proceedings in cases such as this where the state
proceedings Act Cap. 92 procludes the granting of injunctions against the
state. Section 16 of the Act reads as follows:

“16 (1) In any civil proceedings by or against the State the court shall,
subject to the provisions of this Act, have the power to make all such orders as
it has power to make in proceedings between subject, 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 the court shall not grant an injunction
 510

or make an order for specific performance, but may in lieu thereof make an
order declaratory of the parties;
(ii) ...........................................................................

(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.”

The practice in the United Kingdom with regard to the staying of orders
pending judicial review is set out in Order 53 of the Rules of the Supreme
Court (the White Book) 1995 edition.

Order No. 53 Rule 3 (10) reads as follows:

“(10) leave to apply for judicial review is granted, then

(a) if the relief sought is an order prohibiting certiorari and the Court so
directs, the grant shall operate as a stay of the proceedings to which the
application relates until the determination of the application or until the Court
otherwise orders;
(b) if any other relief is sought, the court may at any time grant in
the proceedings such interim relief as could be granted in an action begun by
writ.

It has been held in the United Kingdom in the case of Rv Secretary of state for
Education and science Exparte Avon County Council (1) that a stay of
proceedings under Order 53 is not in the nature of an injuction and courts are
not precluded by Section 21(2) of the Crown Proceedings Act 1947 from
granting astay against a minister or officer of the Crown. Section 21(2) of the
proceedings Act is identical to section 16(2) of the state Proceedings Act in
Zambia.

Mr Kinariwala on behalf of the Attorney General argued that in view of the

fact that the order for transfer had already been made, it was not possible now
to order that it be stayed. Icannot agree with this, Iam satisfied that where the
purpose of an order has not yet been carried out, it can be stayed as
“proceedings” within the meaning of Order 63 . Mr Kinariwala further
argued that, although the procedure for applying for judicial review under
Order 53 applies to Zambia, no stay of proceedings could be applied for in
Zambia because a stay is the same as an injunction which is prohibited by
section 16(2) of the Zambian Act.

Mr Mwanawasa accepted that Order 53 applies to Zambia but argued that the
state Proceedings Act did not apply where applications were made for judicial
review. Consequently, he argued, the present action was commenced in
 511

wrong form and the Minister should have been named as the defendant. He
argued that it was too late to name the title of the action at this stage without
injustice to the Minister.

Mr Mwanawasa further argued that, as any loss caused to the applicant by

transferring to Kitwe and back again could be compensated for by monetory
damages, this was not the type of case where an injunction would be
appropriate and in the same way, a stay should not be granted. He argued that
the injunction against the second respondent was wrong because the second
respondent was not in the party who ordered this transfer and further that an
injunction was unnecessary in the circumstances.

Mr Kinariwala did not support Mr Mwanawasa’s argument that the action was
wrongly commenced.

Mr simeza on behalf of the applicant did not accept that the action was
wrongly commenced but said that if the court held against him he would apply
for amendment in accordance with any findings of the court. On the merits of
the case he argued that the English procedure applied and that a stay was
available and should be granted. He argued that loss of prestige in being
transferred to Kitwe could not be compensated for in money.

In the case of Zambia National Holdings Company Limited v United National

Independence Party and Anor, this court commented, albeit obiter, “In the
next place we wish to acknowledge that there is a growing school of thought
against continued existence of state immunity against injunctive relief and
other coercive orders: see for example, de Smith’s Judicial Review of
Administrative Action, 4th Edition, from page 445. However, the underlying
rationale, particularly the difficulties of enforcement by compulsory process
of orders and judgements against the State make it unrealistic to accept that
the State can be proceeded against in all respects as for a subject. Simon
Brown, J, delivered a most useful review of this problem in M v Office (5)
where, on appeal to the Court of Appeal, one of their Lordships suggested on
ingenious way round the problem by finding, that as Minsters and civil
servants are accountable to the law and to the courts for their personal actions,
they can be proceeded against for contempt of court if they disobey or
frustrate an order of the court. For our part, what is certain is that it was not
true (and Mr Sakala properly so conceded) that, in the absence of an order of
interlocutory injunction, no other useful orders could have been made against
the State in order to effect a suspension of the compulsory acquisition pending
trial and, in case of breach, to exact compliance. If, for example, compliance
with fairly coercive prerogative orders like mandamus and others can be
exacted, so can other suitable orders (not amounting to prohibited reliefs)
envisaged by Article 26(i).”
 512

So far as Mr Kinariwala’s argument is concerned the only difference between

the English legislation and the provisions of the Zambian law is that the
English Crown Proceedings Act 1947 contains in section 38 the following
definition: “Civil Proceedings” includes proceedings in the High Court or
County Court for the recovery of fines or penalties but does not include
proceedings on the Crown side of the King’s bench Divison.” In the case of
the Factortame Limited v Secretary of State for Transport, the majority of the
Law Lords, who were of the view that there could be a stay of proceedings
despite the provisions that no injunction could be granted, said that one of the
reasons for their so finding was that proceedings on the Crown side were
specifically excluded from “Civil Proceedings” in the definition section. This
definition section does not appear in the Zambian legislation, but, as pointed
out by Glidewell, L.J., in the Secretary of State for Education, ex parte Avon
County case” in my view, this question comes back to the issue whether the
phrase’ a stay of the proceedings’ is apt to include decisions by the Secretary
of State, and the process by which he reached such decisions. I am correct in
my view that the phrase is wide enough to embrace such decision, it follows
that what is sought is just as much a stay as it would be in relation to a
decision or judgement of an inferior court.

It is not properly described as an injunction, which is an order directed at a

party to litigation, not to the court or decision making body. Of course, in
some respects an application for judicial review appears to have similarities to
civil proceedings betwen two opposing parties, in which an injunction may be
ordered by the court at the suit of one party directed to the other. When
correctly analysed, however, the apparent similarity disappears. Proceedings
for judicial review, in the field of public law, are not a dispute between two
parties, each with an interest to protect, for which an injunction may be
appropriate. Judicial review, by way of an application for certiorari, is a
challenge to the way in which a decision has been arrived at. The decision
maker may appear to argue that his or its, decision was reached by an
appropriate procedure. But the decision maker is not in any true sense an
opposing party, any more than an inferior court whose decision is challenged
is an opposing party. Thus the distinction between an injunction and a stay
arises out of the difference between the positions of the persons or bodies
concerned. An order that a decision of a person or body whose decisions are
open to challenge by judicial review shall not take effect until the challenge
has finally been determined is, in my view, correctly described as a stay.

For these reasons I am of the opinion that an officer or Minister of the Crown,
in principle, may be stayed by an order of the Court”.

I respectifully agree that following these arguments, applications for judicial

review are not civil proceedings within the meaning, of the State Proceedings
Act. I further agree that a stay in these circumstances is not an injunction. I
am aware that, regretably, personalities are involved in this case, but that does
 513

not after the fact that the proceedings is an eqnuiry into a discretionary
ministerial decision, not a civil proceeding.

Consequently I would find that a stay of the order of transfer of the applicant
to Kitwe can be made in this jurisdiction.

A perusal of the facts of R v Secretary of State of Education Ex parte Avon

County Council indicates that the court there was not concerned with whether
or not damages in the form of a financial award could compensate the
applicant for any less suffered. It was accepted that a proposal to reorganise
secondary education was a proceeding being stayed and, therefore, ought to be
the fact that a decision in the main action was imminent. In this case I agree
with counsel for the respondents that monetory could compensate the
applicant for most of the results of having to transfer to Kitwe but for the
purpose of deciding what is an appropriate order to make in this case, I
acknowledge that there would be considerable physical inconvenience if the
applicant were to be made to move to Kitwe and thereafter to move back
again to Lusaka if his action in the court below are mindful of Mr
Mwanawasa’s argument that it is an desirable for there to be interference in
the internal discipline for an organisation but he fairly acknowledges that in
some cases such interference may be necessary. This is a case which concerns
a discretionary exercise of a power. The court below by granting leave,
deemed it fit for judicial review. In those circumstances it is quite possible
that it is desirable to stay the implementation of the decision.

It would not be improper for the court below to make an order in favour of the
applicant in the main action, provided of course such an order is merited by
the evidence, and we must therefore take into account the possibility of such
an order being made. From the wording of the order by the learned trial judge
it appears that he did not think it necessary to make an order for stay of
proceedings because he expected to be able to decide the main case very
shortly. In the event the case has taken longer than anticipated, and for the
reasons I have given I find it necessary for the order that there be a stay of the
transfer of the applicant from Lusaka to Kitwe to continue pending the
outcome of the appeal.

I now turn to the application for an injunction against the second respondent.
In the case of Factorfame Ltd v Minister of State for Transport (2) at p. 705
Lord Bridges said:

“Injunctions were never available in proceedings on the Crown side

involving the ancient jurisdiction to issue the ancient prerogative writs of
mandamus, prohibition and certiorari.........”

Under the provisions of Order 53 rule 3(10) (b) the remedy of injunction is
now available in applications for judicial review and as I said earlier, may be
 514

made against the second respondent by treating the application against that
respondent as if it had been begun by writ or any other way, possibly by way
of amendment, ordered or presumed in the court below.

In considering whether the injunction should continue, I do not accept the

argument that because the second respondent did not order the transfer of the
appellant there is no need for any order against it. In the circumstances of this
case the applicant is entitled to protection from interference with his present
position as Town Clerk in Lusaka, and for this reason the injunction is
necessary. I would order that the original injunction against the second
respondent be restored pending the outcome of the appeal.

Sakala, J. S: I concur.

Chaila, J. S:..............................................................................

Gardner, J. S: In view of the majority decision it is ordered that the stay of the
order of transfer and the injunction against the second respondent be restored
pending the outcome of the appeal.

Costs to the applicant

Appeal allowed

McPhail v persons, names unknown

Bristol Corporation v Ross and another

LAND; Other Land; ADMINISTRATION OF JUSTICE; Courts

COURT OF APPEAL, CIVIL DIVISION
LORD DENNING MR, ORR AND LAWTON LJJ
17, 18, 24 MAY 1973

Land – Recovery of possession – Summary proceedings – Order for

possession – Squatters – Whether court having discretion to suspend
order – Whether equitable jurisdiction to suspend order – RSC Ord 113.

The defendants who were homeless broke into unoccupied premises owned by
the plaintiff and made their home there. As squatters in the premises whose
 515

presence there had not been acquiesced in by the owner, the defendants were
trespassers. They were also guilty of the criminal offence of forcible entry.
The owner took proceedings for possession against the defendants by
originating summons under RSC Ord 113. On the hearing of the summons
the judge made an order, enforceable forthwith, that the plaintiff ‘do recover’
possession of the premises. The defendants appealed, asking for a stay of
execution of four weeks or so on the ground that in all the circumstances it
was just and equitable to grant a stay. They admitted they had no defence in
law to the proceedings.

Held –

When an owner came to the court asking for an order of possession against
squatters, the court was bound to give him the order asked for and had no
discretion to suspend the order. The courts of common law never
suspended an order for possession seeing that, as against trespassers, the
owner could take possession at once without the help of the courts. The
owner could not, therefore, be in any worse position when he came to the
courts. Furthermore there was no equitable jurisdiction to suspend an
order for the possession for a court of equity never intervened in aid of a
wrongdoer. Accordingly, in summary proceedings by an owner under RSC
Ord 113, the court was bound to make an order for recovery of possession
against squatters and could not give them any time; it was for the owner to
give them such time as he thought right

(see p 397 b to e, p 398 b and c, p 399 g and h, p 400 a and p 401 a, post).
Dictum of Lord Lyndhurst LC in Grafton v Griffin (1830) 1 Russ & M at 337
applied.
Department of the Environment v James [1972] 3 All ER 629 approved.
Per Lord Denning MR. When a tenancy has come to an end, the landlord is
not entitled to take possession except by an order of the court; and, on making
the order, the court has power to fix a date for possession. The date is a
matter for the discretion of the court, but in the ordinary way, where the
defendant has no statutory authority to remain, the usual order is from four to
six weeks (see p 399 c and d, post).
Notes
For time for delivery of possession in proceedings for the recovery of land,
see 32 Halsbury’s Laws (3rd Edn) 377, para 606.
For execution of a writ of possession, see 16 Halsbury’s Laws (3rd Edn) 65–
67, paras 101–103.
Cases referred to in judgments
Aglionby v Cohen [1955] 1 All ER 785, [1955] 1 QB 558, [1955] 2 WLR
730, 46 Digest (Repl) 377, 202.
Air Ministry v Harris [1951] 2 All ER 862, 95 Sol Jo 727, CA, 13 Digest
(Repl) 390, 180.
Anonymous (1670) 1 Vent 89, 86 ER 62.
 516

Browne v Dawson (1840) 12 Ad & El 624, 4 Per & Dav 355, Arn & H 114,
10 LJQB 7, 113 ER 950, 16 Digest (Repl) 363, 104.
393
Chester-le-Street Rural District Council v Carr (30 October 1952) unreported,
but see [1952] CPL 790, [1952] CLY 707, CA.
Department of the Environment v James [1972] 3 All ER 629, [1972] 1 WLR
1279.
Gledhill v Hunter (1880) 14 Ch D 492, 49 LJCh 333, 42 LT 392, 38 Digest
(Repl) 916, 1066.
Grafton v Griffin (1830) 1 Russ & M 336, 39 ER 130, LC, 38 Digest (Repl)
935, 1250.
Harris v Austin (1615) 3 Bulst 36, 1 Roll Rep 211, 81 ER 31, 19 Digest (Repl)
407, 2122.
Hemmings v Stoke Poges Golf Club [1920] 1 KB 720, [1918–19] All ER Rep
798, 89 LJKB 744, 122 LT 479, CA, 15 Digest (Repl) 800, 7566.
Hillary v Gay (1833) 6 C & P 284, NP, 15 Digest (Repl) 798, 7546.
Jones v Savery [1951] 1 All ER 820, 95 Sol Jo 334, CA, 13 Digest (Repl) 390,
181.
Lacy v Berry (1659) 2 Sid 155, 82 ER 1308.
Leicester Permanent Building Society v Shearley [1950] 2 All ER 738, [1951]
Ch 90, 7 Digest (Repl) 508, 187.
London Borough of Southwark v Williams, London Borough of Southwark v
Anderson [1971] 2 All ER 175, [1971] Ch 734, [1971] 2 WLR 467, 69 LGR
145, CA.
Manchester Corpn v Connolly [1970] 1 All ER 961, [1970] Ch 420, [1970] 2
WLR 746, 21 P & CR 154, CA, Digest (Cont Vol C) 559, 80a.
Minet v Johnson [1886–1890] All ER Rep 586, 63 LT 507, 6 TLR 417, CA,
38 Digest (Repl) 914, 1058.
Newton v Harland (1840) 1 Man & G 644, 1 Scott NR 474, 133 ER 490, 15
Digest (Repl) 796, 7497.
R v Bathurst (1755) Say 225, 96 ER 860, 15 Digest (Repl) 796, 7494.
R v Child (1846) 2 Cox CC 102, 15 Digest (Repl) 798, 7529.
R v Dormy (1700) 1 Ld Raym 610, Holt KB 267, 12 Mod Rep 417, 1 Salk
260, 91 ER 1308, 15 Digest (Repl) 799, 7554.
R v Mountford [1971] 2 All ER 81, [1972] 1 QB 28, [1971] 2 WLR 1106, 135
JP 250, 55 Cr App Rep 266, CA.
Sheffield Corpn v Luxford, Sheffield Corpn v Morrell [1929] 2 KB 180,
[1929] All ER Rep 581, 98 LJKB 512, 141 LT 265, 93 JP 235, DC, 13 Digest
(Repl) 389, 172.
Stone (J & F) Lighting & Radio Ltd v Levitt [1946] 2 All ER 653, [1947] AC
209, [1947] LJR 65, 176 LT 1, HL, 31 Digest (Repl) 722, 8055.
Wykeham Terrace, Brighton, Sussex, Re, ex parte Territorial Auxiliary and
Volunteer Reserve Association for the South East [1971] Ch 204, [1970] 3
WLR 649, Digest (Cont Vol C) 832, 1007a.
Cases and Authority also cited
Cousins v Smith (1807) 13 Ves 542, LC.
 517

Fourmaids Ltd v Dudley Marshall (Properties) Ltd [1957] 2 All ER 35, [1957]
Ch 317.
Kelly v White, Penn Gaskell v Roberts [1920] WN 220, DC.
Moore v Registrar of Lambeth County Court [1969] 1 All ER 782, [1969] 1
WLR 141, CA.
T C Trustees Ltd v J S Darwen (Successors) Ltd [1969] 1 All ER 271, [1969]
2 QB 295, CA.
Upjohn v Macfarlane [1922] 2 Ch 256; varied [1922] 2 Ch 267, CA.
Megarry, the Rent Acts (10th Edn, 1967), vol 1, pp 249, 250.
Appeals
By an originating summons dated 19 April 1973 against ‘persons whose
names are not known’, the plaintiff, Donald Douglas McPhail, sought
recovery of possession of premises known as 4 Thornhill Square, Islington,
London. On 25 April 1973 Phillips J ordered that the plaintiff ‘do recover
possession of the premises’. On 1 May the Court of Appeal ordered that
Sheila Smith, Elaine Hardman, Linda Levin, John Forsyth and Mark Hill be
joined as defendants in the action and that the execution of the order of
Phillips J be stayed until the hearing of the defendants’ appeal.
By an originating summons dated 13 April 1973 against Jennifer Rosemary
394 Ross and Angela Tapp, Bristol Corporation sought recovery of possession
of premises known as 23 Normanby Road, Easton, Bristol. On 18 April 1973
Foster J ordered that the plaintiffs ‘do recover possession’ of the premises.
The defendants in both actions appealed on the grounds that the judge was
wrong in law in holding that he had no jurisdiction to grant a stay of execution
and that in all the circumstances of the case it would be just and equitable to
grant a stay. The appeals were heard together. The facts are set out in the
judgment of Lord Denning MR.
J C Harper for the defendants Sheila Smith, Elaine Hardman and Mark Hill in
the first appeal and for both defendants in the second appeal.
The defendants Linda Levin and John Forsyth appeared in person.
Anthony Lincoln QC and S A Nathan for the plaintiff in the first appeal.
J A R Finlay QC for the plaintiffs in the second appeal.
Cur adv vult
24 May 1973. The following judgments were delivered.
LORD DENNING MR.
Introduction
Mr McPhail is the owner of a leasehold house, 4 Thornhill Square, Islington.
There was some furniture in it, but otherwise it seems to have been
unoccupied. On Friday, 13 April 1973, the premises were left locked and
secured. On Sunday, 15 April, some persons, then unknown, made entry.
They got in by the front door and put a new lock on. On Monday, 16 April,
Mr McPhail went with a detective inspector, and asked them their names.
They did not give them. So he took proceedings for possession under RSC
Ord 113. These were served on them some time on Thursday, 19 April, for
hearing on 25 April. They then gave their names. They said they believed
that the house had been empty for at least two years, and, as they had nowhere
 518

to live, they decided to make their home there. On 25 April Phillips J made an
order that Mr McPhail do recover possession.
The corporation of Bristol own a house, 23 Normanby Road, Easton, Bristol.
About 16 March 1973 two women and five children entered it and started to
live there. As soon as the officers of the corporation heard of it, they went to
the house. They found a notice on the window, which read:

‘This property has been occupied by squatters, and we intend to stay here. If
you try to evict us with force, we will prosecute you and [you] must deal with
us through the Courts.’

The corporation took steps under RSC Ord 113 to obtain possession. They
served a summons on the two women on 13 April. It came before Foster J on
18 April. He made an order that the plaintiffs do recover possession of the
house.
In both cases the squatters appeal to the courts. They admit that they have no
defence in law, but they ask the court to give them time. They only ask for
four weeks, or so. Can the court give it to them? The case raises this
question: when the owner of the house asks for an order for possession, is the
judge bound to make an order which is enforceable forthwith? or can he
suspend it for a while?
2 The law as to squatters
What is a squatter? He is one who, without any colour of right, enters on an
unoccupied house or land, intending to stay there as long as he can. He may
seek to justify or excuse his conduct. He may say that he was homeless and
that this house or land was standing empty, doing nothing. But this plea is of
no avail in law. As we said in London Borough of Southwark v Williams
([1971] 2 All ER 175 at 179, [1971] Ch 734 at 744):
395

‘If homelessness were once admitted as a defence to trespass, no one’s house

could be safe … So the courts must, for the sake of law and order, take a firm
stand. They must refuse to admit the plea of necessity to the hungry and the
homeless; and trust that their distress will be relieved by the charitable and the
good.’

(i) The remedy of self-help

Now I would say this at once about squatters. The owner is not obliged to go
to the courts to obtain possession. He is entitled, if he so desires, to take the
remedy into his own hands. He can go in himself and turn them out without
the aid of the courts of law. This is not a course to be recommended because
of the disturbance which might follow. But the legality of it is beyond
question. The squatters were themselves guilty of the offence of forcible
entry contrary to the statute of 1381a. When they broke in, they entered ‘with
strong hand’ which the statute forbids. They were not only guilty of a
criminal offence. They were guilty of a civil wrong. They were trespassers
 519

when they entered, and they continued to be trespassers so long as they

remained there. The owner never acquiesced in their presence there. So the
trespassers never gained possession. The owner, being entitled to possession,
was entitled forcibly to turn them out: see Browne v Dawson. As Sir
Frederick Pollock put it in his book on Tortsb:
________________________________________
a The Forcible Entry Act 1381 (5 Ric 2 Stat I c 7)
b Pollock’s Law of Torts (15th Edn, 1951), p 292
¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯

‘A trespasser may in any case be turned off land before he has gained
possession, and he does not gain possession until there has been something
like acquiescence in the physical fact of his occupation on the part of the
rightful owner.’

Even though the owner himself should use force, then so long as he uses no
more force than is reasonably necessary, he is not himself liable either
criminally or civilly. He is not liable criminally (1) because it was said in the
old times that none of the statutes of forcible entry apply to the expulsion by
the owner of a tenant at will: see Anon (1970); R v Dormy; R v Bathurst; but,
even if this is no longer true, (2) in any case the statutes only apply to the
expulsion of one who is in possession: see R v Child. They do not apply to
the expulsion of a trespasser who has no possession. The owner was not
civilly liable because the owner is entitled to turn out a trespasser using force,
no more than is reasonably necessary: see Hemmings v Stoke Poges Golf
Club.
(ii) The remedy by action.
Although the law thus enables the owner to take the remedy into his own
hands, that is not a course to be encouraged. In a civilised society, the courts
should themselves provide a remedy which is speedy and effective; and thus
make self-help unnecessary. The courts of common law have done this for
centuries. The owner is entitled to go to the court and obtain an order that the
owner ‘do recover’ the land, and to issue a writ of possession immediately.
That was the practice in the old action of ejectment which is well described by
Sir William Blackstone in his Commentaries on the Laws of Englandc; and by
Maitland in his Equityd. So far 396 as I can discover, the courts of common
law never suspended the order for possession. Once the order was made, the
owner could straightaway get a writ of possession for the sheriff to cause the
owner to be put into possession. Sometimes the owner, although he got an
order, might not wish to get the sheriff to turn out the trespassers, because the
sheriff was known to charge extortionate fees. In that case the owner was
entitled to take possession at once by his own hand: see Harris v Austin
((1615) 1 Roll Rep 211 at 213) per Coke CJ; Lacy v Berry ((1659) 2 Sid 155
at 155, 156); Aglionby v Cohen.
________________________________________
c 6th Edn (1774) vol 3, pp 200–205 and Appendix No II
 520

d (1909), pp 352–354; and see The Forms of Action at Common Law

(1936), pp 58–60
¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯
Seeing that the owner could take possession at once without the help of the
courts, it is plain that, when he does come to the courts, he should not be in
any worse position. The courts should give him possession at once, else he
would be tempted to do it himself. So the courts of common law never
suspended the order for possession.
It was suggested by counsel for the defendants that, although the courts of
common law never suspended the order for possession, nevertheless, the
courts of equity might do so; because they had power to issue an injunction to
restrain the owner from proceeding with his action at law or with the
enforcement of his order. In support of his argument, counsel for the
defendants cited a passage from Gilbert on the History and Practice of the
High Court of Chancery ((1758) pp 195, 196) which was repeated afterwards
in Harrison’s Practicee, and Bacon’s New Abridgment of the Lawf. But the
passage is obscurely worded. And I am satisfied that a court of equity would
never intervene in aid of a wrongdoer. In Grafton v Griffin ((1830) 1 Russ &
M 336 at 337) where some claimants had wrongfully turned a widow out of a
house and got possession of it, Lord Lyndhurst LC said: ‘This Court will not
interfere to support a possession so acquired.’
________________________________________
e The Accomplish’d Practiser in the High Court of Chancery (7th Edn,
1790), vol 2, p 247
f 6th Edn (1807), vol 3, p 654
¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯
By the Supreme Court of Judicature Act 1875 the old action of ejectment was
replaced by an action for the recovery of land; but the practice remained the
same, although the machinery was different: see Gledhill v Hunter ((1880) 14
Ch D 492 at 498–500). The judgment was, as before, that the plaintiff ‘do
recover’ possession. No time was mentioned. No date was given. The
plaintiff could at once issue a writ of possession which was executed against
the premises themselves. The sheriff’s officers turned out everyone who was
there. If there was someone else there, in addition to the defendant, he too
would be turned out unless he applied to come in and defend: see Minet v
Johnson; Leicester Permanent Building Society v Shearley.
(iii) The remedy by summons
So the matter rested until some difficulties were discovered recently. When
some squatters entered on vacant land belonging to the Manchester
Corporation, this court granted an injunction against them, but held that it
could not make an order for recovery of possession except in a final judgment:
see Manchester Corpn v Connolly. And when some squatters occupied
houses in Brighton, Stamp J held that no proceedings could be taken for
recovery of possession unless they were named as defendants: see Re
Wykeham Terrace, Brighton, Sussex, ex parte Territorial Auxiliary and
Volunteer Reserve Association for the South East. The result was that if the
 521

squatters 397 did not give their names, or if one squatter followed another in
quick succession, no order for possession could be made. I must confess that I
doubt the correctness of that decision. But it does not matter. The position
was soon put right by new Rules of Court. RSC Ord 113 and CCR Ord 26 are
quite clear. A summons can be issued for possession against squatters even
though they cannot be identified by name and even though, as one squatter
goes, another comes in. Judgment can be obtained summarily. It is an order
that the plaintiffs ‘do recover’ possession. That order can be enforced by a
writ of possession immediately. It is an authority under which anyone who is
squatting on the premises can be turned out at once. There is no provision for
giving any time. The court cannot give any time. It must, at the behest of the
owner, make an order for recovery of possession. It is then for the owner to
give such time as he thinks right to the squatters. They must make their
appeal to his goodwill and consideration, and not to the courts. I think that the
judgment of Goulding J in Department of the Environment v James was
correct.
3 The position of tenants
I must point out, however, that I have referred so far only to sqatters who
enter without any colour of title at all. It is different with a tenant who holds
over after his term has come to an end or after he has been given notice to
quit. His possession was lawful in its inception. Even after the tenancy is
determined, he still has possession. If he remains in possession and in
occupation, there is high authority for saying that the owner is not entitled to
take the law into his own hands and remove the tenant by force. He should go
to the court and get an order for possession. Otherwise he is guilty of a
criminal offence contrary to the statute of forcible entry: see what was said in
Hillary v Gay ((1833) 6 C & P 284 at 285, 286) by Lord Lyndhurst CB; and
Newton v Harland. He may not be liable to a civil action for damages: see
Hemmings v Stoke Poges Golf Club. But, nevertheless, his conduct is
unlawful and should not be countenanced by the courts of law. Any doubt on
this score is nowadays removed by s 32 of the Rent Act 1965 which says that
where a tenancy has come to an end but the occupier continues to reside in the
premises, it is not lawful for the owner to recover possession otherwise than
by proceedings in the court.
Seeing that in the case of a tenancy the owner is not entitled to regain
possession himself by his own self-help, and that he is bound to come to the
court to recover possession, it follows that the courts are able to fix a date on
which possession shall be recovered. At any rate, the House of Lords has
proceeded on that assumption: see J & F Stone Lighting & Radio Ltd v Levitt
([1946] 2 All ER 653 at 655, [1947] AC 209 at 216); and Parliament has done
likewise. Thus in s 138 of the County Courts Act 1888 Parliament said that at
the end of a tenancy the judge may order possession to be given ‘either
forthwith or on or before such day as the judge shall think fit to name’. That
section was repealed by the County Courts Act 1934, and replaced by a simple
provision in s 48 that: ‘A county court shall have jurisdiction to hear and
determine any action for the recovery of land … ’ But the 1934 Act was a
 522

consolidating Act. It did not alter the previous law. It certainly did not take
away the power given by s 138 of the 1888 Act. It proceeded on the
assumption that at the end of a tenancy a court has power to fix a date on or
before which possession should be given. All the textbook writers, without
exception, say that the county court has this power. Likewise in the
Protection from Eviction Act 1964 Parliament, in s 2(1), said that when the
court made an order for possession by the owner against the occupier—
398

‘the court may suspend the execution of the order for such period, not
exceeding twelve months from the date of the order, as the court thinks
reasonable.’

That section was repealed by the Rent Act 1965, but Parliament cannot
thereby have intended to take away the power of the court at the end of a
tenancy to suspend the execution of its order. It simply left intact its previous
power.
If the county court has the power at the end of the tenancy to fix a date, then
the High Court must have the like power. The County Courts Acts have
always provided for the transfer of actions from the county court to the High
Court, and vice versa, as for instance ss 49 and 50 of the County Courts Act
1959. It cannot be that, on such a transfer, the High Court has less power than
the county court.
In my opinion, therefore, when a tenancy has come to an end, the landlord is
not entitled to take possession except by an order of the court; and, on making
the order, the court has power to fix a date for possession. How then is this
power to be exercised? It is a matter for the discretion of the court. But, in
the ordinary way, where the defendant has no statutory right to remain, the
usual order is from four to six weeks: see Sheffield Corpn v Luxford (four
weeks); Jones v Savery (one month); J & F Stone Lighting & Radio Ltd v
Levitt ([1946] 2 All ER at 655, [1947] AC at 216) (six weeks).
Thus far I have spoken of tenants whose tenancy has come to an end. The
same applies to a servant who is given exclusive occupation during his
employment. If it comes to an end, he cannot be turned out except by order of
the court: see s 32 of the Rent Act 1965; and on making such an order the
court has power to fix a date for possession to be recovered.
Likewise in the case of a mortgagee who seeks possession of a dwelling-
house. The court has power by statute (Administration of Justice Act 1970, s
36(2)) to suspend the order. This goes to show that, apart from statute, the
court would have no such power.
4 Conclusion
It follows from what I have said that Sheffield Corpn v Luxford, Jones v
Savery and Air Ministry v Harris were rightly decided. But I am afraid that
Chester-le-Street Rural District Council v Carr may not have been. It was
disposed of too shortly to be considered as an authority.
 523

My conclusion is that, when the owner of a house comes to the court and asks
for an order to recover possession against squatters, the court must give him
the order he asks. It has no discretion to suspend the order. But, whilst this is
the law, I trust that owners will act with consideration and kindness in the
enforcing of it—remembering the plight which the homeless are in.
ORR LJ. I agree with the judgment delivered by Lord Denning MR, and
would only add that, like him, I cannot regard the decision of this court in
October 1952 in Chester-le-Street Rural District Council v Carr as any
authority to the contrary. There is nothing to suggest that the question with
which we are here concerned was ever raised in the case, and if it had been, I
have no doubt that there would have been both a fuller judgment and a fuller
report of the case. I too would dismiss these appeals.
LAWTON LJ. All these defendants are homeless. They have sought to solve
their problems by occupying empty houses belonging to the plaintiffs and
squatting 399 in them. Phillips J in one case and Foster J in the other have
made orders the effect of which is to enable the plaintiffs to recover
possession forthwith. The defendants have appealed to this court for a stay of
execution. They have not sought to challenge the findings that they were
squatters; they have asked for time to find other accommodation. Has the
court any jurisdiction to give them time? In my judgment the answer is, No.
Putting the problem in these stark terms, and answering it as I have, is but
another example of the difficulties and unpleasantness of administering the
law as it is without fear of favour to any man. Were I a cadi dispensing justice
under a palm tree I might have been able to solve the problems which arise in
this case. I might have ordered the plaintiff, Mr McPhail, to forego the profits
which he seeks to make by converting 4 Thornhill Square, Islington, into flats
and the corporation of Bristol to postpone the demolition of 23 Normandy
Road for the purpose of extending the playing fields of a school.
Cadis do not sit in this court. The problem has had to be solved by the
application of principle; and in my judgment the solution is to be found in first
principles, even though those principles have been encrusted, and partly
hidden, by the legal dust of centuries.
The beginning is to be found in the Middle Ages. The king, as the fountain of
justice, had the duty of doing right by all men. The litigant who sought justice
had to show that a wrong had been done to him. If he did show this, the king
issued a writ to ensure that the wrong complained of was remedied. The
equitable jurisdiction of our courts, as all lawyers know, evolved in order to
enable the Crown to do justice in those cases in which writs issued under the
common law produced only the appearance of justice. But he who sought
equity had to show that the common law proceedings were impinging on some
right or interest which he had.
Over the centuries these concepts of justice became the body of law which
was administered by the Court of Chancery until 1873 and which is now
administered by this court under the provisions of the Supreme Court of
Judicature Act 1925. The law has become complex; but the fundamentals of
that law have not changed.
 524

In my judgment counsel for the defendants’ erudite argument must be tested

against these fundamentals. His researches have established that the Court of
Chancery would grant a common injunction in an ejectment. Since common
injunctions have been abolished, the same result is obtained nowadays by an
order staying proceedings or execution. But on what basis did the Court of
Chancery issue common injunctions in ejectment actions? It could only have
been on the basis that the plaintiff in the action for an injunction alleged that
he had some equitable right or interest which required protection from the
oppression of the common law action. What equitable right or interest has a
trespasser? Those who became trespassers by holding over after the
expiration of a tenancy or a licence may have been able to conjure up some
equitable interest or right. The 17th and 18th century practitioners showed
considerable skill in the invention of legal fictions to establish jurisdiction;
and even today in landlord and tenant litigation the lawyer representing the
tenant who has had notice to quit can often find a point which will ensure for
his client an extension of time. But what equitable right or interest could be
conjured up for a squatter, still less for one who had effected a forcible entry?
Most squatters go into possession by, or as a result of, forcible entry. Forcible
entry has been a crime since the Forcible Entry Act 1381. In 1391 justices
were empowered by statuteg to arrest those who made forcible entries and put
them in gaol. The Forcible Entry Act 1429 made provision for justices to
reinstate those who had been kept out of their land by force. These powers
were extended by the Forcible Entry Act 1623. All these statutes are still in
force: see R v Mountford. Lord Lyndhurst LC refused to find any equitable
interest in one who had effected a forcible entry. ‘This 400 Court’, he said,
‘will not interfere to support a possession so acquired’: see Grafton v Griffin
((1830) 1 Russ & M 336 at 337).
________________________________________
g 15 Ric 2 c2
¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯
It follows, in my judgment, that squatters were never able to enlist the aid of
the Court of Chancery to resist a writ of possession and they cannot now. The
position of tenants and licensees holding over may be different. I have not
thought it necessary to consider the jurisdiction of the court to stay execution
in such cases.
I would dismiss the appeal.
Appeals dismissed; orders for possession.
Solicitors: Islington Community Law Centre (for the defendants Sheila
Smith, Elaine Hardman and Mark Hill); H E G Hodge (for the defendants,
Jennifer Rosemary Ross and Angela Tapp); Lewison & Co (for the plaintiff
Mr McPhail); Blyth, Dutton, Robins, Hay (for the plaintiffs Bristol
Corporation).
Wendy Shockett Barrister.
[1973] 3 All ER 401
 525

ZAMBIA TELECOMMUNICATIONS COMPANY LIMITED v

MUYAWA LIUWA.

Supreme Court
Sakala, Chirwa and Chibesakunda J.J.S.
20th February, 2002 and 21st June, 2002
(SCZ Judgment No. 16 of 2002).

Flynote

Civil Procedure – Appeals - Application or motion from single Judge to

Supreme Court – Whether an appeal or renewal.

Headnote
 526

The short facts of this motion were that the applicant who appeared in person
applied to a single judge to dismiss the appellant’s appeal for want of
prosecution. The argument advanced before a single Judge was that the
respondent had been granted leave to lodge the record of appeal within 60
days. The respondents argument before the single Judge was that the 60
days meant calendar days which included Saturday, Sunday and Public
holidays. Suffice to mention that this position taken by the appellant was
strongly opposed by counsel who appeared for the respondent who in his
submissions appeared to suggest that the 60 days excluded public holidays.
He also pointed out that the failure to lodge the record of appeal within 60
days had been caused by difficulties in procuring the record of proceedings
before the High Court. A single Judge of the Supreme Court refused the
applicant’s application to dismiss the appeal for want of prosecution and
hence the renewal of the application
to the full court, which application he styled as an appeal.

Held:

(i) Litigants proceed from a single Judge of the Supreme Court not
by way of appeal but by way of renewal of an application

(ii) In calculating the period in which the record of appeal is to be

lodged, Saturdays, Sundays and Public Holidays are excluded.

Legislation referred to:

Supreme Court Act Cap 25 s. 4

Work referred to:

Order 3 Rule 2 (5) of the Rules of the Supreme Court (White Book)

P. Kasonde, Legal Officer for Zambia Telecommunications Company Limited

for the appellant.
For the respondent In person.

Judgment

SAKALA J.S. delivered the Judgment of the Court:

Aggrieved by the decision of a single Judge refusing the appellant’s

application to dismiss the appeal for want of prosecution, the appellant who
appeared in court in person both here and before a single Judge renewed his
application to the full court which application he styled as an appeal.
 527

In passing and at the outset, we want to state here for the benefit of litigants
and advocates, who appear before judges of this court at Chambers, that when
aggrieved, or dissatisfied by any decision of a single Judge of this court, they
come to a full court by way of the application or motion and not by way of an
appeal. This is so because in terms of Section 4 of the Supreme Court Act,
Cap. 25 of the Laws of Zambia, a single judge of the court may exercise any
powers not involving the decisions of an appeal or a final decision in the
exercise of his original jurisdiction. Thus, in criminal matters, if a single
Judge refuses an application, the person aggrieved by the refusal is entitled to
renew that same application to the full court and in civil matters and order
direction or decision made by a single Judge may be varied, discharged or
reversed by the full court. It is precisely for this reason that a single Judge
may sit on the renewed application which was dealt with by himself or herself
because the renewed application is not an appeal. It is also for that very reason
that we refused the applicant’s objection to a member of this panel from
sitting on this renewed application.

When we heard this motion, we refused it and indicated that we shall give our
reasons later in a written ruling. We made no order as to costs. We now give
our reasons.

The short facts of this motion were that the applicant who appeared in person
applied to a single Judge to dismiss the appellant’s appeal for want of
prosecution. The argument advanced before a single Judge was that the
respondent had been granted leave to lodge the record of appeal within 60
days. The respondent’s argument before the single Judge was that the 60 days
meant Calendar days which included Saturdays, Sundays and public holidays.
Suffice it to mention that this position taken by the appellant was strongly
opposed by counsel who appeared for the respondent who, in his
submissions, appeared to suggest that the 60 days excluded public holidays,
but pointed out also that failure to lodge the record of appeal within 60 days
had also been caused by difficulties in procuring the record of proceedings
before the High Court necessitating him writing the Clerk of Court. The other
reason given was that the record of appeal had been delayed because of the
numerous applications by the applicant. The single judge considered the
arguments and made the following observations:-

“My interpretation of the rule is that non working days are not included in
calculation as lodging of documents can only be done on working days. I
would, therefore, basing it on that conclude that the extended time had not
expired. Secondly, I have looked at the notes of the court’s sitting and the
ruling made by the learned Judge. There is no time stipulated in the original
order. The signed order, on the other hand, states sixty days. With that
confusion, this court would find difficulties in granting the application to
dismiss the appeal as the benefit of the doubt would be given to the appellant.
Thirdly, although the courts do not make a habit of depriving a successful
 528

litigant of the fruits of judgment except in special circumstances but where

there are issues which must be fully adjudicated and there is no prejudice to be
occasioned to the respondent by allowing the appellant to defend the claim,
the action must be allowed to be heard in full.”

The single Judge rejected the application to dismiss the appeal and ordered the
appellant to file the record within 14 days and that failure to do so would
result in the appeal being dismissed. The appellant filed a very detailed notice
of motion in which he cited at great length the single Judge’s ruling. He also
cited a number of authorities of this court as well as statutes. The gist of the
major ground of the motion was that the single Judge was wrong in law in
holding that the 60 days stipulated under rule 4 of the Supreme Court are
exclusive of Saturdays and Sundays and public holidays. There were also
other grounds in support of the motion criticizing the learned Judge’s
approach to the order made by the trial court. There were further grounds
criticizing the single Judge’s acceptance of the respondent’s arguments that
they had difficulties to obtain records of proceedings before the applications
by the respondent.

Another ground attacked the learned trial Judge as having demonstrated a high
degree of bias and discrimination against the appellant. Generally, the
applicant was totally dissatisfied with the ruling of the single Judge. The
motion was supported by an affidavit. On account of the emotional manner in
which the motion and the affidavit in support were drafted, we wish to make
the point that litigants or advocates need not be insolent even where a point is
well taken. In the instant case, the sole issue was whether the 60 days granted
within which to file the record of appeal excluded Saturdays, Sundays and
public holidays. We are satisfied that in terms of Order 2 rule 1 (C) Saturdays
and public holidays are excluded only when the limited time is less than six
days. That rule on computation of time states:-

“When the limited time is less than six days, the following days shall not be
reckoned as part of the time, namely Saturdays and Sundays and any public
holidays.”

To the same effect is Order 3 Rule (2 (5) of Rules of Supreme Court, white
Book, 1999 Edition, except that the limited time is one of seven days in the
White Book. The point of counting days as raised by the applicant before the
single Judge was valid and meritorious. But the court has a discretion in
enlarging time. In the instant case, we are satisfied that there was no
inordinate delay. We take note that as we were hearing this application, the
actual appeal had been set for 21st march, 2002, when originally it was to be
on 21st February, 2002.
 529

On the whole, we cannot fault the single Judge for extending the time on the
facts of this case despite the fact that the applicant had raised a valid point.The
application is refused and we make no order as to costs.

Application refused.

SIPALO v MUNDIA (1966) Z.R. 105 (H.C.)

HIGH COURT
RAMSAY, J.
12TH OCTOBER,1966

Flynote and Headnote

[1] Civil procedure - Appeal - Decision of Registrar - Application

for extension of time - No special summons required.
 530

In an appeal from a decision of the Registrar, an application for an extension

of time may be heard on the hearing of the appeal, without a special summons
being taken out for that purpose.

[2] Civil procedure - Appeal - Decision of Registrar - Time for

appeal.

An appeal to a judge in chambers, from a decision of the Registrar, should be

by notice in writing to attend before the judge within seven days of the
decision complained of. The notice should, strictly, be filed within five days
after the decision.

[3] Civil procedure - Appeal - Notice of Appeal - Time for filing -

Time runs during vacation.

In reckoning the period for filing a notice of appeal time runs during the
vacation.

[4] Civil procedure - Appeal - Notice of appeal - Time for filing -

Enlargement of time - Court's discretion.

The court has a discretion to enlarge time in order to avoid injustice to the
parties.

[5] Civil procedure - Appeal - Notice of appeal - Time for filing -

Enlargement of time - Court's discretion - Must be grounds for
exercise.

Where the court has discretion to enlarge time for a procedural step, it will
not exercise that discretion in favour of the applicant unless there is some
material on which the discretion can be exercised.

Cases cited:
(1) Gibbons v London Financial Association (1897), 4 C.P.D. 263.
(2) In re Beldan's Patent [1911] 1 Ch. 63.
(3) Ratnam v Cumerasamy [1964] 3 All E.R. 933; [1965] 1 W.L.R. 8.
(4) Atwood v Chichester (1878), 3 Q.B. D. 722.

Rules construed:
Zambia:
High Court Rules (Cap. 3, subsid.), order 2, rules 1 (3), 2, 4, order 3, rule 3;
order 27, rule 10 (1); order 40A, rule 3 (4).

England:
Supreme Court (England) Rules, order 54, rule 21.
 531

For the applicant: A Mitchley.

For the respondent: Cunningham.

p106

EDITOR's NOTE:
Some of the points in this judgment are covered by a Practice Direction of
8th February, 1963, to which, it would appear, the learned judge was not
referred by counsel This practice direction reads as follows:
Appeals from the Registrar, Deputy Registrar or District Registrars

1. Attention has been drawn to the fact that doubt appears to exist as to the
proper procedure for appeals from decisions of the Registrar, Deputy
Registrar or District Registrars under order 27, rule 10 (1) of the High Court
Rules. This direction is issued for the avoidance of such doubt.
2. The notice in writing must be to attend before the judge in chambers on a
day named in the notice within seven days of the decision complained of. The
notice of appeal should be served (unless otherwise ordered) at least one clear
day before the day of hearing. Mere lodgment of the notice within seven days
of the decision appealed against does not comply with the rule. This
interpretation of the rule conforms with the practice notes to the RSC, order
35, rule 9 and order 54, rule 21.
3. Similarly on appeals from decisions of an Assistant Registrar under rule
10 (2) of order 27, the notice in writing to attend before the Registrar must be
returnable for a day within seven days from the decision appealed against.

__________________________________________
Judgment

RAMSAY, J.: On 4th August, 1966, the learned Deputy Registrar heard an
application by the defendant in the original action for certain further and better
particulars of the plaintiff's statement of claim and of his reply; and on 9th
August, 1966, he delivered decision dismissing the application.

On 5th October, 1966, the defendant filed a notice of appeal returnable before
a judge in chambers on 11th October, 1966. The notice also contained an
intimation that there would also be an application for an extension of time
within which to appeal.

The High Court Rules, order 2, rule 2, provide that parties may, by consent,
enlarge or abridge any of the times fixed for taking any step, or filing any
document, or giving notice, in any suit, and that where such consent cannot be
obtained, either party may apply to the court or a judge for an order to effect
the object sought to have been obtained with the consent of the other party.
 532

[1] It might, therefore, have been expected that there would have been an
application for extension of time before the filing of the Notice of Appeal, but
it is stated in the Annual Practice, 1966, at p. 1406 in a note to Rules of the
Supreme Court, order 54, rule 21, that the time may be enlarged by the court
or a judge, on the hearing of the appeal, without a summons being taken out
for that purpose. (Gibbons v London Financial Association [1].) I therefore
heard the application for an extension of time.

p107

[2] Order 27, r.10 (1) of the High Court Rules, omitting the last sentence as
inapplicable, is as follows:

" Any person affected by any decision, order or direction of the registrar
may appeal therefrom to a judge at chambers. Such appeal shall be by notice
in writing to attend before the judge without a fresh summons, within seven
days after the decision, order or direction complained of, or such further time
as may be allowed by a judge or the registrar. Unless otherwise ordered there
shall be at least one clear day between service of the notice of appeal and the
day of hearing."

This rule directs that the attendance shall be before the judge within seven
days after the decision complained of; and as at least one clear day's notice is
to be given to the other side, it follows that the notice of appeal should be filed
within five days after the decision.

The rule is practically word for word the same as Rules of the Supreme Court,
order 54, rule 21, which I have referred to above, except that the time allowed
there to attend before the judge is five days, and Gibbons v London Financial
Association is also authority for this statement in the Annual Practice at p.
1406:

" If the list is full, or no judge is sitting, or from any other official cause
the appeal cannot be heard within the time, it may be heard later without
extension of time. But the party appealing must take all the steps necessary to
have the appeal heard within the five days, otherwise it will be out of time."

The facts in Gibbons' case were that the master made a certain order on 7th
April; an appeal summons was taken out against it on 10th April, but as no
judge was sitting at chambers until 17th April, it was made returnable within
the four days which apparently was the period then prescribed. The Divisional
Court held that, as the appellant was not in default at all and had made the
summons returnable at the first minute when it would be of use, it was unjust
not to allow the appeal from the judge's refusal and the time was accordingly
enlarged.
 533

I understand it has been the practice in the High Court here to hear an appeal
against a registrar's decision without an enlargement of time if the notice of
appeal is filed within the seven days (though five should have been the correct
period).

Mr A. O. R. Mitchley therefore submits that the notice should have been filed
by Tuesday, 16th August, that as the court offices were not open on Saturday,
19th, or Sunday, 20th August, and that as the 22nd August was the last date of
the Trinity Sittings, he was only asking for an extension of time of four
effective days.

Order 2, rule 1 (3) of the High Court Rules, provides that where the limited
time is less than six days, Saturdays, Sundays and public holidays are not to
be reckoned as part of the time. The limited time under order 27, rule 10 is
seven days. There are only five effective days in this period, so on this
submission what Mr Mitchley is asking for is not an extension of only four
effective days but that the time allowed should be almost doubled.

p108

His submission is, however, based on a belief that time does not run during
the vacation. But the High Court Rules, order 2, rule 4 provides:

" Summonses may be issued and pleadings may be amended, delivered or

filed during the last eleven days of the Michaelmas and Christmas vacations
respectively, but pleadings shall not be amended, delivered or filed during any
other part of such vacations unless by the direction of the court or a judge."

And rule 5 is as follows:

" Save as in the last preceding rule mentioned the time of the Michaelmas
and Christmas vacations in any year shall not be reckoned in the computation
of times appointed or allowed in accordance with these rules for amending,
delivering or filing any pleadings unless otherwise directed by the court or a
judge."

[3] There is no mention of appeals, in these two rules, and, in the Rules of the
Supreme Court, order 3, rule 3, states:

" Unless the court otherwise directs, the period of the long vacation shall
be excluded in reckoning any period prescribed by these rules or by any order
or direction for serving, filing, or amending any pleading."

In Re Beldam's Patent [2], it was held that this wording did not apply to a
notice of appeal.
 534

I am told that the practice in the High Court Registry is not to file any papers
other than those in the causes and matters detailed in order 40A, rule 3 (4). It
appears to me that, if this is so, the practice is wrong, and that, apart from the
amending, delivering and filing of pleadings time runs during the vacations.

It follows, therefore, that the notice of appeal is seven weeks out of time. The
fact that seven days is the period allowed not only for the filing of the notice
of appeal but also for the hearing before the judge shows that the rules are
designed to cut out procedural delays in bringing a case to trial. Here the
notice was at least six days out of time before the beginning of the vacation,
and it is now seven weeks out of time.

[4] The court, however, has a discretion to enlarge the time with a view to the
avoidance of injustice to the parties. Mr Mitchley has submitted that the
delays have been due to misunderstandings and to his absence from Zambia.
He also states that irreparable damage will be done to his case if the extension
of time is not granted. This assumes that, if the appeal is heard, it will be
successful; and this by no means follows. It seems to me that the defendant is
in a more difficult position than he would have been if the appeal were
allowed, but I do not consider that irreparable damage will be done to his case
if I refuse to hear the appeal, nor that the appeal would be practically certain
to succeed if I heard it.

[5] I adopt the following extract from the opinion of the Privy Council in
Ratnam v Cumerasamy [3]:

" The rules of court must, prima facie, be obeyed, and, in order

p109

to justify a court in extending the time during which some step in

procedure requires to be taken, there must be some material on which the
court can exercise its discretion. If the law were otherwise, a party in breach
would have an unqualified right to an extension of time which would defeat
the purpose of the rules which is to provide a timetable for the conduct of
litigation."

The opinion goes on to deal with the material which was before the court
below, and it continues:

" The principle for which the appellant's counsel contended was that the
application should be granted unless to do otherwise would result in
irreparable mischief. This was said to be extracted from the judgment of
Bramwell, L.J., in Atwood v Chichester [4], when he said:
 535

'When sitting at chambers I have often heard it argued that when

irreparable mischief would be done by acceding to a tardy application, it being
a departure from the ordinary practice, the person who has failed to act within
the proper time ought to be the sufferer, but that in other cases the objection of
lateness ought not to be listened to, and any injury caused by the delay may be
compensated for by the payment of costs. This I think is a correct view.'

' Their Lordships note that these observations were made in reference to a
case where the application was to set aside a judgment by default, which is on
a different basis from an application to extend the time for appealing. In the
one case the litigant has had no trial at all; in the other he has had a trial and
lost. Their Lordships do not regard these observations as of general
application'."

In the instant case I have considered the material which is before me, which
could justify the granting of an extension of time. I have considered it, I do
not think it sufficient to justify such an extension and in the exercise of my
discretion, I refuse to grant an extension of time.

Order accordingly

LEONARD MUNGABANGABA v THE ATTORNEY-GENERAL (1981)

Z.R. 183 (H.C.)

HIGH COURT
MOODLEY, J.
27TH AUGUST, 1981
(1981/HN/403)

Flynote
 536

Constitutional law - Detention - Time - Computations of time in which

grounds for detention are to be served to comply with statutory requirement
of fourteen days.

Headnote

The applicant was detained under a Presidential Detention Order signed on

the 9th February, 1977. He was served with the grounds of detention on the
23rd February, 1977. It was contended for the applicant that if one includes
the date on which the Presidential Detention Order was signed, and the date
on which the grounds for detention were served, then it would appear that the
statement for the grounds of detention were served on the applicant on the
fifteenth day from the commencement of his detention. It was therefore
contended that this was in breach of Art. 27(1)(a) of the Constitution which
requires the grounds to be served within fourteen days after the
commencement of detention.

Held:

(i) For purposes of Art. 27(1)(a) of the10 Constitution, the

computation of time for furnishing the statement of the grounds for
detention should be exclusive of the day on which the actual
detention order was signed and the period of 14 days should be
calculated thereafter.

Case referred to:

(1) Migotti v Colvill (1878-79) 4 Common Pleas Division 233.

Legislation referred to:

Preservation of Public Security Regulations, Cap.106, reg. 33 (1).
Constitution of Zambia, Cap.1 , Art. 27(1)(a).
Interpretation and General Provisions Act, Cap. 2, s. 35(a)

For the applicant: N D Patel, Counsel.

For the respondent: R G Patel, Acting Assistant Senior State Advocate.

Editorial Note:

Where the learned trial judge refers to the day on which the actual detention
order was signed, it would appear that this would only be applicable if the
detention commenced on the same day as it was signed. In the case of a
detention commencing on a day after the date of signing, it appears to be the
intention of this judgment to indicate that the day of commence
ment of detention should be excluded from the calculation of the relevant
time.
_____________________________________
 537

Judgment

M.M. MOODLEY, J.: This is an application for the issue of a writ of habeas
corpus ad subjiciendum.

The applicant Leonard Mungabangaba was detained pursuant to a Presidential

Detention Order dated the 9th February, 1977 in terms of reg. 33(1) of the
Preservation of Public Security Regulations of the Preservation of Public
Security Act, Cap.106. The statement of the grounds for detention was served
on the applicant on the 23rd February, 1977.

The statement of the grounds for detention reads as follows:

"That you on unknown month and date, but in 1976 at Kasempa District of
the North-Western Province, you and Fanwell

p185

Munena were recruited by Adamson Mushala to become his agents and you
actively took part in the following:

(a) Assisted Mushala terrorist gang by delivering letter of propaganda written

by Adamson Mushala and members of his terrorist gang to villagers affixing
such letters onto trees along the roads for the purpose of gaining support from
members of the public for his terrorist gang.
(b) Assisted Mushala terrorist gang by giving information about the reactions
of villagers over Mushala terrorist gang after reading his letters of propaganda
delivered by you.
(c) Failed to report to the police and security forces about the presence of the
Mushala terrorist gang in the area when in fact you were aware that the
Mushala terrorist gang is wanted by the police and security forces.
These acts are prejudicial to public security and its preservation and for
the preservation of public security, it has been found necessary therefore to
detain you."

A due return to the writ having been made, Mr N.D. Patel for the applicant
submits that the applicant's detention was unlawful and contrary to Art. 27(1)
(a) of the Constitution in that the grounds for detention were not furnished to
the applicant within the specified period of 14 days as required by the
Constitution. This is the sole point taken by counsel for the applicant against
the Presidential Detention Order. The issue therefore turns on whether the
grounds for detention had been lawfully served on the applicant within the
madatory period of 14 days.

Article 27(1) (a) of the Constitution reads as follows:

 538

"Where a person's freedom of movement is restricted, or he is detained

under the authority of any such law as is referred to in Article 24 or 26, as the
case may be, the following provisions shall apply . . .
a. He shall, as soon as is reasonably practicable and in any case not
more than 14 days after the commencement of his detention or restriction, be
furnished with the statement in writing in a language that he understands
specifying in detail the grounds upon which he is restricted or
detained, . . . . . . . . "

Counsel for the applicant submits that the applicant was detained under a
Presidential Order signed on the 9th February, 1977. He was served with the
grounds for his detention on the 23rd February, 1977. It is contended on
behalf of the applicant that if one includes the date on which the Presidential
Detention Order was signed, namely the 9th February, 1977, and the date on
which the statement of the grounds for detention were furnished, namely, 23rd
February, 1977, then it would appear that the statement of the grounds for
detention was served on the applicant on the fifteenth day from the
commencement of his detention. Accordingly, it is contended that since Art.
27 (1) (a) of the Constitution requires the statement of the grounds for
detention to be

p186

furnished not more than fourteen days after the commencement of detention
then the service of the grounds of detention on the fifteenth day after the
commencement of detention was in breach of the mandatory provisions of the
Constitution and, in those circumstances, the detention of the applicant was
unlawful. In support of his contention counsel for the applicant relies on the
case of Migotti v Colvill (1) and in particular the following passage from the
judgment of Denman, J., reported at page 234:

"It has been held in many cases that as a general rule, except where it is
necessary in order to settle which of two acts done on the same day is to
prevail, the law takes no notice of part of a day, and that the first day to be
counted is the day any part which is occupied in the particular business which
is to endure for a certain number of days in order to fulfil any requirement of
the law."

Then further on at page 236 Denman, J., states:

"But I can find no authority saying that the general rule ought not to apply
to the case of a sentence of imprisonment. Nor can I see any ground for
doubting that it applies to the case where the sentence is for a calendar month
or given number of calendar months just as much as a sentence for so many
days."
 539

I should state that the issue to be resolved in the case of Migotti v Colvill
(supra) turned on the computation of time namely, what constituted a calendar
month. In that case it was held that a person sentenced to imprisonment for a
space of one calendar month is entitled to be discharged on the day in the
succeeding month immediately preceding the day corresponding to that from
which his sentence takes effect. On the 31st October, the plaintiff was
sentenced to be imprisoned for one offence for one calendar month and for a
second offence for a period of fourteen days commencing after the expiration
of the calendar month. Pursuant to his sentence, he was detained in custody
until the fourteenth of December. It was held that the detention was lawful for
the calendar month did not expire until the thirteeth of November; he was not
entitled to be discharged from the second term of imprisonment until the full
period of fourteen days computed from the first December had expired.

Mr. R.G. Patel for the respondent in reply submits that the detention of the
applicant was lawful and that the argument raised by the applicant against his
continued detention had no valid basis in law, because the statement of the
grounds for detention had been served on the applicant within the time
specified in Art. 27 (1) (a) of the Constitution Counsel for the respondent
relied on s. 35 (a) of the Interpretation and General Provisions Act, Cap. 2.
Section 35 (a) reads as follows:

"In computing time for the purpose of any written law:

(a) a period of days from the happening of an event or the doing of
any act or thing shall be deemed to be exclusive of the day on which the event
happens or the act or thing is done . . . . . "

p187

Thus submits Mr Patel for the respondent, the applicant was detained under a
Presidential Detention Order dated the 9th February 1977 and if one excludes
that day then in terms of s. 35 (a) of the Interpretation and General Provisions
Act, Cap. 2, the applicant had been lawfully served with the statement of the
grounds for his detention on the fourteenth day, namely 23rd February, 1977.
In those circumstances, submits Mr Patel, there was no breach of the
mandatory provisions of Art. 27 (1) (a) and the application for the writ should
be dismissed.

Having considered the submissions on behalf of the applicant and the

respondent, I am satisfied that the court is bound by the provisions of s. 35 (a)
of the Interpretation and General Provisions Act Cap. 2. Counsel for the
applicant, in reply, contends that this particular Act should not apply to the
interpretation of the provisions of the Constitution since mandatory
constitutional safeguards should be strictly enforced. Counsel argues that the
Constitution was superior to an Act of Parliament which should not be relied
on to interpret the provisions of the Constitution. With due respect to counsel
 540

for the applicant I must disagree with his submissions in this regard. Section 3
of the Interpretation and General Provisions Act (the definition section)
defines "written law" as meaning an Act, an applied act, an ordinance and a
statutory instrument. The word "Act" is an enactment of Parliament. The word
"Constitution" means the Constitution of Zambia as by law established.

The preamble to the Constitution of Zambia Act Cap. 1 reads as follows:

"An Act to enact a new Constitution of the Republic of Zambia and to
repeal the Zambia Independence Act, 1964 and to revoke the Zambia
Independence Order, 1964, and the Constitution scheduled thereto, and to
provide for the matters incidental thereto or connected therewith."

Thus it follows that the Constitution of Zambia is a schedule to the

Constitution of Zambia Act, Cap.1 which is an enactment of Parliament and to
which the Interpretation and General Provisions Act, Cap.2 must apply.
Accordingly, I hold that for purpose of Art. 27 (1) (a) of the Constitution, the
computation of time for furnishing the statement of the grounds for detention
should be exclusive of the day on which the actual detention order was signed
and that the period of fourteen days should be calculated thereafter. I therefore
find that the respondent had properly complied with the mandatory provisions
of Art. 27 (1) (a) of the Constitution by serving the statement of the grounds
for detention on the applicant on the fourteenth day after the commencement
of his detention. And the detention of the applicant is lawful. In view of the
fact that the applicant has raised a point of law of some importance I would
order that each party should bear its own costs.

Application refused

D. E. NKHUWA v LUSAKA TYRE SERVICES LIMITED (1977) Z.R.

43 (S.C.)

SUPREME COURT
GARDNER, AD .C.J., BRUCE - LYLE JS. AND CULLINAN, AJ.S.
12TH NOVEMBER 1976, AND 20TH JANUARY, 1977.
S.C.Z. JUDGMENT NO.3 OF 1977.

Flynote
 541

Practice and procedure - Appeal - Time limit for - Application for extension
of time - Grounds for granting.

Practice and procedure - Appeal - Time limit for - Application for extension
of time - Distinguished from application for extension of time for
interlocutory step before trial.

Headnote

On the 6th December, 1974, an assessment of damages was made.

Application for leave to appeal out of time was granted on the 30th January,
1975, and notice of appeal was lodged on the same day. The appeal was not
lodged within sixty days as required by the rules and application was made
on the 18th April for an extension of time on the ground that the matter had
not been dealt with because the advocate having conduct of the matter had
left the country. On the 8th May, 1975, the time was extended for twenty-eight
days. On the 26th May, 1976, a further application for an extension of time
was made on the ground that another advocate who was dealing with the
matter had left the country; this application was referred by a single judge in
chambers to the full court.

Held:

(i) The granting of an extension of time within which to appeal is

entirely in the discretion of the court, but such discretion will not be
exercised without good cause.

(ii) It is not appropriate to apply to an application for an extension

of time within which to appeal the same principles which obtain
ashen there is some delay in interlocutory proceedings before trial;
in the one case the litigant has had a trial and lost, while in the other
he has had no trial at all.

Dictum of Bramwell, LJ, in Atwood v Chichester [3] followed.

(iii) In addition to the circumstances of the delay and the reasons

therefore which provide the material on which the court may
exercise its discretion another most important factor is the length of
the delay itself.

Per curiam. Rules prescribing times within which steps must be taken must
be adhered to strictly and practitioners who ignore them will do so at their
own peril.

Cases cited:
(1) Gatti v Shoosmith, (1939) 3 All ER 916.
 542

(2) Ratnam v Cumarasamy and Another, (1964) 3 All ER 933.

(3) Atwood v Chichester, (1876) 3 QBD 722. 35

For the appellant: H Silweya, Lisulo & Co.

For the respondent: H H Ndhlovu, Jacques & Partners.

___________________________________
Judgment

GARDNER, AD CJ.: delivered the judgment of the court

This is an application for an extension of time in which to lodge an appeal

which has been reserved to the full court by single judge in chambers.

The history of these proceedings is that an assessment of damages was made

on 6th December, 1974. Application for leave to appeal out of time was made
by summons dated 16th January, 1975 and such extension was granted by
order dated the 30th day of January, 1975, whereupon notice of appeal of the
same date was lodged. The grounds of this first

p45

application were that the appellant lived in a remote area and instructions
could not be obtained within the time limit for appeal. The appellant failed to
lodge the appeal within sixty days as required by the rules and application was
made for an extension of time on the 18th April, 1970, on the grounds that the
matter had not been dealt with because the advocate having conduct of the
matter had left the country. As a result of this application an order granting an
extension of time was made on the 8th May, 1975, extending the time for
twenty-eight days. Thereafter on 26th May, 1976, a further application for
extension of time was made on the grounds that another advocate who was
dealing with the matter had left the country. This last application is the one
which is now before this court.

The relevant practice relating to applications for extension of time for appeals
to the Supreme Court is contained in the note to 0.59, r. 14 of the Supreme
Court Practice 1976 (The White Book). The learned editor of that authority
sets out in his note 59143 the comments and cases governing the exercise of a
court's discretion in extending time for appeal, and it is apparent from the
cases set out therein that the principle to be applied is that whilst the granting
of such an extension is entirely in the discretion of the court such discretion
will not be exercised in favour of the appellant without good cause. In the
case of Gatti v Shoosmith [1], the facts were that owing to a misreading of a
new rule relating to the entry of appeals the applicant was a few days too late
in entering an appeal. The intention to appeal had been notified to the
respondent's solicitors by letter sent within the time specified by the rule. The
 543

applicant asked that the time might be extended on the ground that the allure
to enter the appeal within the time limit was due to the mistake of a legal
adviser. It is important to note the way in which this application was
approached. Sir Wilfred Greene, M.R, at page 919 said:

"Under the law as it was conceived to be before the amendment such a

mistake was considered to be in no circumstances a sufficient ground. What I
venture to think is the proper rule which this court must follow is: that there is
nothing in the nature of such a mistake to exclude it from being a proper
ground for allowing. the appeal to be elective though out of time: and whether
the matter shall be so treated must depend upon the facts of each individual
case."

In the event that court granted the application and in so doing said as follows:

"The discretion of the court being, as I conceive it, a perfectly free one, the
only question is whether, upon the facts of this particular case, that discretion
should be exercised. If ever there was a case in which it should be exercised, I
should have thought it was this one. We are not, I think, concerned here with
any question at all as to the merits of this case or the probability of success or
otherwise. The reason for the appellant's failure to institute his appeal in due
time, was a mere misunderstanding, deposed to on affidavit by the managing
clerk of the appellant's

p46
solicitors - a misunderstanding which, to anyone who was reading the rule
without having the authorities in mind, might very well have arisen. The
period involved is a very short one, it is only matter of a few days, and the
appellant's solicitors, within time, informed the respondent's solicitors by
letter of their client's intention to appeal."

In the case of Ratnam v Cumarasamy and Another [2], the Privy Council dealt
with an appeal against a decision of the Court of Appeal of Malaya refusing to
extend the time for appeal in circumstances where an appeal was due to be
lodged by 14th April, 1962, and on 19th April, 1962, the appellant's solicitors
applied for an extension of time for fourteen days. The application was
supported by affidavit of the appellant that he had first instructed his solicitors
to appeal on 13th April, 1962, and he had not taken earlier steps because he
was hoping for a compromise. There was an affidavit in opposition that no
compromise had been discussed and the Court of Appeal had refused the
application. In dismissing the appeal Lord Guest said at page 935:

"The Rules of Court must prima facie be obeyed and in order to justify a
court in extending the time during which some step in procedure requires to
be taken there must be some material on which the court can exercise its
discretion. If the law were other wise, a party in breach would have an
 544

unqualified right to an extension of time which would defeat the purpose of

the rules which is to provide a time-table for the conduct of litigation. The
only material before the Court of Appeal was the affidavit of the appellant.
The grounds there stated were that he did not instruct his solicitor until a day
before the record of appeal was due to be lodged, and that his reason for this
delay was that he hoped for compromise. Their lordships are satisfied that the
Court of Appeal were entitled to take the view that this did not constitute
material on which they could exercise their discretion in favour of the
appellant. In these circumstances, their lordships find it impossible to say that
the discretion f the Court of Appeal was exercised on any wrong principle.

The principle for which the appellant's counsel contended was --a that the
application should be granted unless to do otherwise would result in
irreparable mischief. This was said to be extracted from the judgment of
Bramwell, LJ, in Atwood v Chichester [3] when he said:

' When sitting at Chambers I have often heard it argued that when
irreparable mischief would be done by acceding to a tardy application, it being
a departure from the ordinary practice, the person who has failed to act within
the proper time ought to be the sufferer, but that in other cases the objection of
lateness ought not to be listened to, and any injury caused by the delay be
compensated for by the payment of costs. This I think a correct view.'

Their lordships note that these observations were made in reference to a

case where the application was to set aside a judgment by

p47

default, which is on a different basis from an application to extend the

time for appealing. In the one case the litigant has had no trial at all; in the
other he has had a trial and lost. Their lordships do not regard these
observations as of general application."

I respectfully agree with these comments and would emphasise that where a
matter has already been dealt with fully by a court it is not appropriate to
apply the same principles whirls obtain when there is some delay in
interlocutory proceedings before trial.

In addition to the circumstances of the delay and the reasons therefore which
provide the material on which the court may exercise its discretion another
most important factor is the length of the delay itself. In the same note 59143
of the Supreme Court Practice 1976, the learned editor says:

"The length of time that has elapsed is always a material factor in the grant
or refusal of leave to appeal out of time."
 545

With this statement of practice I entirely agree and it will be noted that in the
successful appeal of Gatti v Shoosmith [1], the applicant was a few days too
late in entering his appeal and this was commented on in the favourable
judgment which I have quoted. In the case of Ratnam v Cumarasamy and
Another [2], however the application was made four days after the time for
lodging the appeal and, although this period could be regarded as short, the
absence of material upon which the court could exercise its discretion
defeated that application.

It is a regrettable fact that in recent years legal practitioners In this country

have approached the need to comply with the rules as to time with complete
nonchalance. This court has had occasion in the past to comment adversely on
the attitude of legal practitioners to compliance with other rules of procedure
but it is time that all legal practitioners were made to understand that where
the rules prescribe times within which steps must be taken these rules must be
adhered to strictly and those practitioners who ignore them will do so at their
own peril. The provisions in the rules allowing for extensions of time are there
to ensure that if circumstances prevail which mane it impossible or even
extremely difficult for parties to take procedural steps within prescribed times
relief will be given where the court is satisfied that circumstances demand it.
It must be emphasised that before this court is able to exercise this discretion
to grant such relief there must be material before it on which it can act. In this
case the appellant having been granted leave to appeal out of time was
required to lodge the appeal within sixty days after the 30th January, 1975.
Application for an extension of this time was made on the 18th April, 1975,
by which time the appellant was eighteen days out of time but despite this the
learned judge of the Supreme Court in chambers extended the time for a
further twenty-eight days. The learned judge gave no reasons for the granting
of that extension of time but it is apparent on the authorities that the granting
of the extension of time was generous to say the least which makes the
subsequent conduct of the appellant's advocates all the more inexplicable.
After they had been in extreme

p48

danger of having the appeal dismissed owing to the departure of one of their
staff, who apparently had not passed on instructions to his successors, the
same thing was allowed to happen again and this time the application for a
further extension of time was made over eleven months after the extended
period for lodging the appeal had expired.

Having regard to the fact that this is the second occasion on which an
application has been made on the same grounds because of the same of the
appellant's advocates and having regard to the inordinate length of time which
has elapsed since the appellant's advocates should have complied with the
rules I have no hesitation in saying that this is not a case in which the court
 546

should exercise its discretion in favour of the appellant by granting the

extension of time. I would refuse this application and reserve the question of
costs to be argued at a later date.

Application refused - question of costs to be argued later

NAHAR INVESTMENT LIMITED v GRINDLAYS BANK

INTERNATIONAL (ZAMBIA) LIMITED (1984) Z.R. 81 (S.C.)

SUPREME COURT
NGULUBE, D.C.J., GARDNER AND MUWO, J.J.S.
15TH FEBRUARY, AND 13TH MARCH, 1984
(S.C.Z. JUDGMENT NO. 1 OF 1984)

Flynote

Civil Procedure - Appeal - Delay - Effect of - Time - Extension of.

 547

Headnote

The appellants failed to lodge the record of appeal within the stipulated time,
including the extended periods. A single judge dismissed the appeal for want
of prosecution. The appellant appealed to the full court.

Held:

(i) Appellants who sit back until there is an application to dismiss

their appeal before making their own application for extension of
time, do so at their own peril.

(ii) In the event of inordinate delay or unfair prejudice to a

respondent, the appellant can expect the appeal to be dismissed.

For the appellant: L.P. Mwanawasa, of Mwanawasa and Company.

For the respondent: B.C. Mutale, of Ellis and Company.
___________________________________________

Judgment

NGULUBE, D.C.J.: delivered the ruling of the court.

This was an application to the full court for an order to reverse an order made
by a simple judge dismissing the applicant's appear for want of prosecution
and to extend the time within which to lodge the record of appeal which is
now ready. On 15th February, 1984, we granted application; reversed the
order of dismissal; granted an extension; but condemned the applicant in
costs. We indicated then that we wished to take the opportunity presented by
this case to draw attention to certain points for the benefit of appellants and
respondents.

The history of this appeal discloses a most unsatisfactory state of affairs: The
Notice of Appeal was filed late and necessitated an application for leave
which was granted on 6th May, 1982. The applicant then had 60 clays within
which to lodge the record of appeal and this period expired. On 22nd April,
1983, the respondent took out a summons to dismiss the appeal for want of
prosecution and it was only in the process of opposing that summons that the
applicant sought, and obtained, an extension of 30 days. The application to
dismiss was not granted. After the expiry of the extended period, the
respondent obtained, ex parte, an order dated 10th July 1983, dismissing the
appeal for want of prosecution. Thereafter, the applicant made a further
application for extension of time within which to lodge the record of appeal,
but that application was never heard and it transpires that this came about as a
result of advice tendered by the master, to the effect that the applicant should
move the full court in the matter of the order of dismissal. The application
 548

before us discloses that, the appellant had been unable, until after the order of
dismissal, to obtain a transcript of the notes of the proceedings from the High
Court.

We wish to remind appellants that it is their duty to lodge records of appeal

within the period allowed, including any extended period.If difficulties are
encountered which are beyond their means to control (such as the non-
availability of the notes of proceedings which it is the responsibility of the
High Court to furnish), appellants have a duty to make prompt application to
the court for enlargement of time. Litigation must come to an end and it is
highly undesirable that respondents should be kept in suspense because of
dilatory conduct on the part of appellants. Indeed, as a general rule, appellants
who sit back until there is an application to dismiss their appeal, before
making their own frantic application for an extension, do so at their own peril.
If the delay has been inordinate or if in the circumstances of and individual
case, it appears that the delay appeal has resulted in the respondent being
unfairly prejudiced in the enjoyment of any judgment in his favour, or in any
other manner, the dilatory appellant can expect the appeal to be dismissed for
want of prosecution, notwithstanding that he has a valid and otherwise
perfectly acceptable explanation. The applicant in this case had such an
explanation, but the time to alliance that explanation had long expired. The
application therefore, was granted mainly because we find that there was a
fortuitous circumstance making this an exceptional case. This was that a
formal order for dismissal was taken out ex-parte without any supporting
application and in the absence of any enabling previous order by the single
judge. The respondent, it transpired, acted under the mistaken belief that,
when the single judge dismissed its application to dismiss the appeal and
granted the applicant an extension of 30 days, the order made on that occasion
had included a condition to the effect that, should the applicant default, the
appeal would, without more, stand dismissed. No such "unless order" was
made and none can arise by implication from the mere fact of an extension
having been obtained at the hearing of an application to dismiss. It was, no
doubt, due to an oversight that the order of dismissal was signed when there
was, in fact, no such order made at all. Application granted, reversed the order
of dismissal and granted an extension
 549

UNIVERSITY OF ZAMBIA COUNCIL v CALDER (1998) S.J. 21 (S.C.)

SUPREME COURT
BWEUPE, D.C.J., SAKALA AND CHAILA, JJ.S.
12TH AUGUST, 1997.
(S.C.Z. JUDGMENT NO. 5 OF 1998)

Flynote

Appeal - Extension of time - Appeal to a full court from a single judge - When
such appeal should be made

Headnote
 550

The Appellant had been granted two extensions of time within which to file a
Record of Appeal. His third such application was denied by a single judge.
The appellant then applied for leave to appeal to a full court against the
single judge's decision to refuse to grant another extension of time. The judge
held that there was no provision to appeal to a full court against the decision
of a single judge. The appellent appealed to the Supreme Court.

Held:

(i) When the order, direction, or decision made by a single judge

has
taken effect, nothing remains on the record that can be varied,
discharged or reversed by the full court.

For the applicant: Mr P. Kapongo of Kwazi Chambers.

For the respondent: No appearance.
________________________________________

Judgment

SAKALA, J.S.: delivered the ruling of the court.

In terms of Rule 71 (1) (b) of the Supreme Court Rules Cap.25, we heard this
application in the absence of the respondent as we did not see it fit to adjourn
the hearing. This is an application by way of Notice of Motion against a
decision of a single judge of this court dated 30th of May,1997, refusing the
appellant's application for another extension of time within which to file the
record of appeal.

The brief history of the application before us is that on 27th of November

1996, the appellant was granted 30 days extension of time within which to file
the record of appeal. According to the record this was not the first extention.
Four months after the extension of 30 days was granted the appellant again
applied for another extension of time within which to file the record of appeal.
The application was heard on the 11th of April 1997. During the hearing of
the application, Counsel for the appellant informed the single judge that an
extension for a week "could be sufficient". The Court then made the
following order:

"In the interest of justice the appellant is granted 14 days within which to
lodge the record of appeal failure which the appeal shall stand dismissed with
costs. Todays costs to the respondent in any event."
 551

On the 30th of May 1997, 49 days after the extension of 14 days, the appellant
appeared before a single judge. According to the record the proceedings of
that day went as follows:

"In Chambers
Coram: W M Muzyamba
Matter Between:

THE UNIVERSITY OF ZAMBIA COUNCIL AND

JEAN MARGARET CALDER

p22

For the Applicant: PAUL KAPONGO: Nkwazi Chambers.

For the Respondent: L.C. ZULU: RMA Chongwe & Company.

MR KAPONGO

This is our application for leave to appeal to the full bench against the
decision of the court refusing a further extension of the time to lodge the
Record of Appeal. I want to rely on the affidavit of Micheal Tandeo filed on
12/5/94.

MR ZULU

We object to the application firstly on the ground that the appellant have had
three occassions on which they had been allowed an extension of time within
which to lodge the Record of Appeal. The last occasion was on 11th April,
1997, before this Court. the appellant agreed to 7 days but were given 14
days within which to file the record of appeal, but failed to do so. It is
therefore not true that they were refused an extension. The application is here
misconceived and should be dismissed.

MR KAPONGO in reply. - Nil

Court:

This is an application for leave to appeal to the full court against the decision
of this court refusing an application for further extension of the time within
which to lodge the Record of Appeal. No appeal lies to the full court against a
decision of a single judge. The proper course in the circumstances is to apply
to the full court in terms of section 4 of the Act and Rule 48(4) of the Supreme
Court Rules Cap 25. This application is therefore misconceived and is
therefore refused with costs to the respondent."
 552

It must be observed at this juncture that by 30th May, 1997, when the parties
appeared before a single judge, the appeal was no longer in existence as it
stood dismissed at the expiry of 14 days extension granted by a single judge
on 11th April, 1997.

On 30th May,1997, a single judge was therefore perfectly entitled to hold the
application misconceived and refusing it and in terms of Rule 12(4) the
Master of Supreme Court should have not entertained the papers. The
question for consideration by the full court is whether Section 4 and Rule 48
(4) of the Supreme Court Act are applicable to the facts of this application at
this very late stage?

On behalf of the applicant Mr Kapongo submitted that in terms of section 4 of

the Supreme Court Act and Rule 48(4) of the Supreme Court Rules, this court
had power and jurisdiction to revive the appeal.

We have considered the submissions by Mr Kapongo and we have also

examined the provisions of Section 4 of the Supreme Court Act. Section 4(1)
(b) which in so far as is relevant to the present application reads:

"4(1) A single judge of the Court may exercise any power vested in the
court not involving the decision of an appeal or a final decision in the exercise
of its original jurisdiction but;

4(b) in civil matters any order, direction or decision made or given in

pursuance of the powers conferred by this section may be varied, discharged
or reversed by the court."

Also Rule 48(4) reads as follows:

p23

"(4) Any person aggrieved by any decision of a single judge who desires to
have such decision varied, discharged or reversed by the court under para (b)
of section four of the Act, shall in like manner file before the hearing by the
court three extra copies of the proceedings including copies of any affidavits
filed by any other party prior to the single judge's decision, for the use of the
court.''

Our understanding of both Section 4(1)(b) and Rule 48(4) is that for any
litigant to take advantage of these provisions he must in the first place apply to
the full court within, but before the expiry of the period extended by a single
judge, when the appeal is pending by virtue of the extension. When the order,
direction, or decision made by a single judge has taken effect, nothing remains
on the record that can be varied, discharged or reversed by the full court. A
party aggrieved by any decision of a single judge and desires to have such
 553

decision varied, discharged or reversed by the court should do so before the

expiration of the time set by a single judge.

In the present application the applicant has come to the full court rather too
late after the expiration of the 14 days extension. The application at this stage
is therefore misconceived and is accordingly refused.

Appeal dismissed

COSTA I. TEMBO AND HYBRID FARM (Z) LIMITED

SUPREME COURT
SAKALA, CJ, MAMBILIMA AND CHITENGI, JJS
24TH SEPTEMBER, 2003 AND 28TH OCTOBER, 2003
SCZ No. 13 OF 2002.

Flynote:
 554

Civil procedure - Rule 48 (5) of the Supreme Court Rules, Cap. 25 - Court
interpreting its own Judgment.

Headnote:

The Appellant filed an application before the Supreme Court to interpret its
own Judgment particularly where the Judgment related to costs. The court in
its Judgment had ordered each party to bear its own costs as incurred in the
Supreme Court. The Respondent took that pronouncement to mean that even
the costs incurred in the High Court be borne by each party. Therefore the
Respondent refused to pay the appellant the costs which were incurred in the
High Court.

Hence the appellant filed an application for interpretation of the Court's

Judgment.

Held:

The Supreme Court has the power to make such order as to the whole or
any part of the costs of appeal or any court below as may be just but in this
present case the court's order as to costs did not affect the costs incurred in
the court below, but only affected costs incurred in the appeal.

Application found in favour of the appellant.

Appellant: Mr. M.V. Kaona, of Nakonde Chambers

For the Respondent: Mr. M.B. Muyawala, of Dzekedzeke and Company

RULING

Mambilima, JS, delivered the Ruling of the Court.

The Appellant has filed a Notice of Motion under Rule 48(5) of the Rules of
the Supreme Court, Cap. 25 of the Laws of Zambia, seeking an interpretation
of our judgment delivered on 16th April, 2003. The portion of the Judgment
on which the interpretation is sought is the last paragraph on page 26 of the
Record of Appeal which reads:

“On costs, although the Court has a direction in the award of costs, as a
general rule, costs follow the event. A successful litigant will get his costs
unless the Court orders otherwise for very good reasons. On this appeal, the
Respondent has partially succeeded in that he will have to be paid the
 555

remaining two months salary in lieu of notice as we have already ordered. On

this premise, we make no order on costs”.

In his written heads of argument, Mr. Kaona explained that this Motion was
prompted by the refusal by the Respondent to pay the Appellant’s costs in the
Court below on the ground that in our Judgment of 16th April, 2003, we had
overturned the Order for costs granted by the High Court. He submitted that
the words used in the Judgment should be taken in the correct and proper
context of the whole paragraph and that once this is done, it will be clear that
the Court dealt with the issues of costs with regard to the appeal only and did
not interfere with the award of the Court below. While conceding that this
Court has jurisdiction to vary or reverse an order for costs made by the lower
Court, Mr. Kaona submitted that the term that Court makes “no order as to
costs” does not mean costs in the Court below but on Appeal. He referred us
to a number of authorities, one of which is Order 62/A4/18 of the Rules of the
Supreme Court (White Book) 1995 Edition which deals with entitlement to
costs. According to Mr. Kaona, there is no provision under this Rule which
states that the costs of appeal or “no order of costs” means costs in this Court
and in the Court below. Mr. Kaona also referred us to Rule 77 under the
Supreme Court of Zambia Act, which empowers this Court t make such Order
“as to the whole or any part of the costs of appeal or in any Court below as we
may be just....”

Mr. Muyawala in response submitted that his understanding of our Order

was that each party will bear its own costs in this Court and in the Court
below.

We have considered the submissions by Counsel and the portion of our

Judgment over which interpretation is being sought. We agree with Mr.
Kaona that there is ambiguity in the paragraph in question. The term we used;
to “make no order on costs” should be taken in the full context of the whole
paragraph. We are alive to the principle that a successful litigant is entitled to
his costs. After noting that in “this appeal”, the Respondent had partially
succeeded, we made no order on costs. Clearly, this Order related to the costs
in this Court and not the Court below. It is evident to us from the wording of
the paragraph in question that we did not vary the Order for costs made by the
Court below. Our Order only affected costs on Appeal.

We cannot find any basis for the Respondent to refuse to pay the costs
awarded in the Court below.

Since by its refusal to pay the costs in the Court below the Respondent has
necessitated this application by the Appellant, we condemn it in costs of this
Motion, which we grant to the Appellant, to be taxed in default of agreement.
 556

NATIONAL HOTELS DEVELOPMENT CORPORATION T/A

FAIRVIEW AND EBRAHIM MOTALA

SUPREME COURT
NGULUBE CJ, SAKALA AND CHIRWA, JJS.
22ND NOVEMNER, 2002 AND 24TH APRIL, 2002
(SCZ JUDGMENT No. 10 OF 2002)

Flynote:

Nuisance - Injunction
 557

Headnote:

In this case, the appellant and respondent were neighbours separated by a

road. The respondent complained that playing loud music by the appellant on
its terraces over looking his house late into the night disturbed his quite
enjoyment of his house. The court below found the appellant liable hence it
appealed. The respondent obtained a perpetual injunction against the
appellant.

Held:

In striving to strike a balance, music was to be played at a reasonable level

hence the injunction ordered to be rephrased.

Appeal allowed in part.

Case referred to:-

1. Sedleigh-Denfield-v- O’ Callaghan (1940) AC 880.

For the Appellant: N. Chanda of Okware and Associates

For the Respondent: A.M. Wood of A.M. Wood and Company

Judgment

Ngulube, CJ, delivered the judgment of the Court.

This case concerns noise nuisance and the issues are whether it was wrong
to find the appellant (the defendant) liable at all and secondly, if the answer be
in the negative, whether it would be wrong to ban forever the playing of music
on the terrace of the defendant’s hotel. The parties are neighbours separated
only by a road and the respondent (hereafter called the plaintiff) complained
that the playing of loud music on the terrace more or less overlooking his
house late into the night disturbed his quiet and convenient enjoyment of his
house. The defendant’s position was that the playing of music on the terrace
attracts more patrons and its absence would lead to serious financial loss. The
plaintiff testified to being thoroughly inconvenienced such that it was
sometimes impossible even to hear the dogs barking or visitors’ cars’ arriving
or even to hold any meaningful conversation. The parties called some of the
neighbours, on the other side to say they too were sufferers like the plaintiff.
The parties even called experts to record the noise levels in decibels with the
defendant submitting that the plaintiff was oversensitive and should have no
cause of action. An expert on the plaintiff’s side talked of having recorded
 558

noise levels around 81 to 88 decibels while the expert on the defendant’s side
opined that to be painful to the ear and therefore intolerable, the noise levels
should be around 120 decibels or more.

Spirited arguments and submissions were made before us to persuade us that

noise levels at less than 120 decibels should not be actionable. We are not too
sure whether noise nuisance can be reduced to decibels so that only a specific
level or quantity of noise measured in decibels should be actionable. This type
of civil wrong has long been recognized to raise questions of fact, such as
whether noise disturbance which deprives a neighbour of rest or sleep can or
cannot inconvenience any other person of ordinary firmness and sensibility.
The whole position is put very well by the learned authors of Clark and Lind
sell on torts, 16th edition, paragraph 24-05 when they write:-

“In nuisance of the third kind, the personal inconvenience and interference
with one’s enjoyment, one’s quiet, one’s personal freedom, anything that
discomposes or injuriously affects the senses or the nerves,” there is no
absolute standard to be applied. It is always a question of degree whether the
interference with comfort or convenience is sufficiently serious to constitute a
nuisance. The acts complained as constituting the nuisance, such as noise,
smells or vibration, will usually be lawful acts which only become wrongful
from the circumstances under which they are performed, such as the time,
place, extent or the manner of performance. In organized society everyone
must put up with a certain amount of discomfort and annoyance from the
legitimate activities of his neighbours, and in attempting to fix the standard of
tolerance the vague maxim sic utere tuo, ut alienum non laedas has been
constantly invoked. But the maxim is of no use in deciding what is the
permissible limit in inconvenience and annoyance between neighbours, and
the courts in deciding whether an interference can amount to an actionable
nuisance have to strike a balance between the right of the defendant to use his
property for his own lawful enjoyment and the right of the plaintiff to the
undisturbed enjoyment of his property. No precise or universal formula is
possible, but a useful test is what is reasonable according to ordinary usages of
mankind living in a particular society.”

“Whether such an act does constitute a nuisance must be determined not

merely by an abstract consideration of the act itself, but by reference to all the
circumstances of the particular case, including, for example, the time of the
commission of the act complained of; the manner of committing it, that is,
whether it is done wantonly or in the reasonable exercise of rights; and the
effect of its commission, that is, whether those effects are transitory or
permanent, occasional or continuous; so that the question of nuisance or no
nuisance is one of fact.”

Respectfully, we go along with the foregoing propositions which are

supported by case authorities, as noted by the authors. In the case at hand, the
 559

Court below found as a fact that the plaintiff suffered discomfort, disturbance
and inconvenience. Admittedly, the defendant too was not doing anything
illegal as such; they too were exercising their rights to entertain their patrons
with music and to make money. Apparently, from the spirited submissions,
music on the terraces encourages patrons to come in their numbers and to
spend their money. Apparently and contrary to Mr. Wood’s submissions, it is
not the same thing if the music were to be played indoors; in some other part
of the hotel, as was suggested. However, there can be no question of killing
the tort of noise nuisance for the sake of accommodating business interest, as
Mr. Wood feared.

The problem here cannot be one of attaching or detaching liability. Quite

clearly, there is no proper ground for disturbing the lower Court’s finding of
liability and the ground urged in that behalf is successful.

However, we find that there was much merit in the ground complaining
about the relief of perpetual injunction and the apparent permanent blanket
ban on the playing of music on the terraces. The problem is one of striking a
balance between the right of the defendant to use his property for his own
lawful enjoyment and the right of the plaintiff to the undisturbed enjoyment of
his property. We have lifted this phrase out of the earlier quotation which in
turn was taken from SEDLEIGH-DENFIELD-V-O’CALLAGHAN (1), by
Lord Wright at p. 903. In striving to strike a balance, we are pleased to note
the sensible attitude taken by the plaintiff through his Counsel that he is not
opposed to music at reasonable levels and up to a reasonable hour. The
blanket ban was too harsh and it ignored the rights of the defendant which
equally need to be recognized and protected. In this regard, the appeal is
allowed to the extent that the complete ban on the playing of music on the
terraces is set aside. Instead, there will be conditions imposed and the order of
injunction rephrased so as to permit the playing of music on the terraces up to
21.30 hours during weekdays and 22.30 hours during weekends. The times
represent a compromise between those suggesting the plaintiff to damages to
be assessed on an aggravated footing by the Deputy Registrar on application
by the plaintiff. We consider that this will address the concern that orders have
in the past been continually breached.

In sum, the appeal succeeds to the extent indicated. In order to foster

goodwill and a sensible approach to the problem by these neighbours, we
make no order as to costs.
 560

MANAL INVESTMENT LIMITED AND LAMISE INVESTMENT

LIMITED

SUPREME COURT
SAKALA ACTING DCJ, CHAILA, CHIBESAKUNDA JJS
9TH AUGUST AND 18TH JANUARY, 2001
(SCZ judgment No. 1/2001)

Flynote

Injunction
 561

Headnote

The appeal was against the refusal of the High Court to grant an injunction.
The facts were that the appellant was the owner of a cloth, registered as a
protected design number 3/97 under the Registered Design Act. The
appellant used of mattresses for sale to the public. The respondent on the
other hand, had been used by the Respondent in the manufacture of
mattresses with a foam thinner than that used by the appellant and passed of
as a product of the appellant. According to the appellant, the mattresses
produced by the Respondent were manufactured with thin foam thereby
making the cost of production cheap by passing it as the appellant's product.
The fact the appellant had a certificate of registration for the cloth in issue
was common cause.

The appellant claimed interalia for an injunction against the respondent. The
injunction was by the judge. The appellant then applied to a single judge of
the Supreme Court who granted an injunction.

Held:

(i) A single judge of S.C. had no powers in matters of injunctions as

the same involved a decision of an appeal or a final decision on
the matter. (Section 4 Supreme Court Act CAP 25).

(ii) As long as there is a design registered under the act, it ought to

be protected until successfully challenged.

For the Applicant: Mr. A. WRIGHT of Malambo and Silwamba

For the Respondent: Mr. C.M. BANDA of Chifumu Banda and Company
with Mrs. B.L. MUPESO
_________________________________________________________

Judgment

SAKALA, ACTING DCJ., delivered the judgment of the court.

When we heard this Motion at Kabwe, we restored the main appeal which
had been withdrawn. We treated the hearing of the motion as the hearing of
the main appeal itself. The Order of a single judge purporting to grant the
injunction was confirmed as the order of the full court. We indicated then that
we shall give our reasons in a written judgment. We directed that the main
action must proceed to trial without waiting for the written judgment. We
now give our reasons.
 562

The appeal was against the refusal of the High Court to grant an injunction.
The brief facts, in so far as they are relevant to the appeal were that, the
Appellant was the owner of a cloth, registered as a protected design Number
3/97 under the Registered Design Act. The Appellant used the said cloth, the
registered design, in the manufacture of mattresses for sale to the public. The
Respondent on the other hand, had been importing a cloth similar to that of
the Appellant. The said imported cloth was also being used by the
Respondent in the manufacture of mattresses with a foam thinner than that
used by the Appellant and passed off as a product of the Appellant.
According to the Appellant, the mattresses produced by the Respondent were
manufactured with thin foam thereby making the cost of production cheap by
passing it as the Appellant’s product. The fact that the Appellant had a
certificate of Registration for the cloth in issue was common cause.

The Appellant commenced an action by a Writ of Summons claiming,

among others, for an injunction to restrain the Respondent whether by itself,
servants or agents, whosoever from selling and, or trading in mattresses on
Zambian market which are covered with a cloth or design registered as design
Number 3/97. Before the main action could be heard, the Appellant applied
for an interlocutory injunction before a High Court Judge. In short Ruling,
very difficult to understand the reasoning, the learned trial Judge dismissed
the application with cost but put the main action on the fast track and ordered
that the trial commence forthwith. But on 22nd September, 1999 the
Appellant, dissatisfied with the trial Judge’s Ruling, filed a notice of appeal to
the Supreme Court. However, on 13th October, 1999, the Appellant applied
to a single Judge of this court for an injunction pending determination of the
matter. The single Judge, granted an interim injunction on 27th October, 1999
and after hearing both parties made the interim injunction on 19th March, to
continue pending trial. After obtaining the injunction pending trial before a
single judge, the appellant filed a notice on 1st February, 2000 to discontinue
appeal No. 135/99 as they had obtained what they had wanted by the main
appeal. But on 5th May, 2000, the Appellant filed an ex-parte summons for
leave to institute committal proceedings against the Respondent for
disobeying the injunction. It is at this stage that it was realised that in terms of
Section 4 of the Supreme Court Act, a single judge had no powers in matters
of injunctions as the same involved a decision of an appeal or a final decision
on the matter. This meant the application for an interim injunction before a
single judge and the Order granted were misconceived. Hence, the motion to
restore the appeal discontinued on 1st February, 2000. Indeed, the
discontinuance of the appeal was also misconceived because it was based on
the assumption that the Order of the single judge was valid at law, which was
not the case. For that reason, we restored the appeal against the refusal by the
High Court to grant an injunction.
 563

The point must, however, be emphasized that the grant or refusal of an

injunction is a matter involving the decision of an appeal or a final decision
(Section 4, Supreme Court Act Cap 25). We are mindful that this position is
bound to cause difficulties in practice as the Supreme Court does not sit
everyday. Thus, in a case of urgency, where the High Court has refused to
grant an interim injunction, the aggrieved applicant may have no immediate
remedy and by the time the appeal is heard, irreparable damage may already
have been caused. There is therefore, need to look at the provision relating to
appeals in injunction matter.

Turning to the appeal itself, written heads of argument were filed with the
court based on two grounds. The first ground alleged an error on the part of
the trial judge in not giving reasons for his refusal to grant the injunction. We
have looked at the short Ruling by the learned trial judge. To appreciate the
gist of the first ground, it is imperative to set out the Ruling in full. The
Ruling reads: (sic)

“I have the injunction I do not need to go into ments of the case, this is an
issue of commercial trading, and there is a question of design and designation
in the alleged design. This designation does not go to rast of irrequalibility
nor one that goes within the principle of the quoted case in the American
Cyanamid case, the question of irreparability does not own, and I dismiss the
Applicant with costs. If I will however put it under the Font Haunte and order
that trial commence forth.”

The above Ruling is quoted verbatim from a record certified as a true copy of
the Deputy Registrar. It does not reflect seriousness in the preparation of a
record of appeal.

According to the learned trial Judge, the question of irreparability was not
an issue. He did not say why that was so. Yet, the case for the Appellant was
that they had registered their design and had a certificate of registration and
until such time, were entitled to the protection of the law. The Ruling of the
trial court was too short and gave no reasons. On this ground alone this
appeal ought to have succeeded.

The second ground of appeal alleged that the learned trial Judge erred by not
taking into account the principles of law governing the grant of injunctions
and in particular, the provision of Section 14(1) of the Registered Design Act.
Our short answer is that there was no Ruling at all in this matter which also is
a good ground for allowing the appeal.

In our considered view, the learned trial Judge overlooked the salient facts
of the case as established by the evidence. First and foremost, the Appellant
presented a design to the Registrar of Designs. The design was registered. At
the material time, the registration was still in place. Secondly, by registering
 564

the design, the Appellant by law, enjoyed copyright privilege (See Section 14
Cap 402.) The Appellant applied for an injunction to protect the right they
acquired by registering the design. Indeed, the issue whether the design
registered by the Appellants is same or similar to the cloth used by the
Respondents is for the trial court. We are satisfied that as long as there is a
design registered under the Act, it ought to be protected until successfully
challenged. Indeed, the fact of registration increases the weight of the balance
of convenience n favour of the registered owner. In the present case, the
Respondents admitted in their affidavit that the Appellants’ products covered
in the design cloth are of superior quality compared to theirs. We were
satisfied that if an injunction was not granted in these circumstances,
irreparable damage would have been caused to the Appellants.

For the foregoing reasons, we grant interim injunction pending the

determination of the main action.

AHMED ABAD v TURNING AND METALS LIMITED (1987) Z.R. 86

(S.C.)

SUPREME COURT
NGULUBE, D.C.J., GARDNER AND SAKALA, JJ.S.
21ST MAY AND 29TH JUNE,1987.
(S.C.Z. JUDGMENT NO. 13 OF 1987)

Flynote
 565

Civil procedure - Interlocutory injunction - Damages adequate remedy -

Whether injunction available.
Civil procedure - Interlocutory injunction - Grant having effect of
determining action against the future interests of one party - Whether
appropriate.

Headnote

The appellant agreed, as part of a wider agreement, to buy a trailer from the
respondent company. When the agreement fell through the appellant took
possession of the trailer. The respondent obtained an interim injunction
ordering the appellant to return the trailer. The appellant appealed against
the order to discharge the injunction and sought a mandatory order that he be
required to pay the respondent the purchase price and the respondent
release the trailer and documents of title to him to enable him to register the
trailer in his own name.

Held:

(i) An injunction is inappropriate when damages would be an

adequate remedy.

Turnkey Properties v Lusaka West Development Company Limited

applied.

(ii) An injunction should not be granted if the effect would be to

determine the outcome of the action against future interests of a
party who might be successful at the trial.

Cases cited:
(1) Shell and BP Zambia Limited v Conidaris and Others (1975) Z.R. 174
(2) Turnkey Properties v Lusaka West Development Company Limited (1984)
Z.R. 85.

For the appellant: L.P. Mwanawasa, Mwanawasa and Company with S.

Sikota, Gibson Chigaga and Company
For the respondent: A.Adam, Solly Patel, Hamir and Lawrence. 10
_______________________________________
Judgment

SAKALA, J.S.: delivered the judgment of the court.

On 21st May,1987, when we heard this appeal, we made an order discharging

the ex parte interim injunction, refused an application for a mandatory
injunction, ordered the action to proceed by way of summary trial and made
 566

an order for directions. We said then that we would give reasons later and we
now give those reasons.

This is an appeal against an order of a High Court commissioner refusing to

discharge an ex parte interim injunction.

For convenience we will refer to the appellant and the respondent as the
defendant and the plaintiff company respectively which they were in the court
below. The plaintiff company are the manufacturers of, among other things,
trailers. The defendant is a businessman by occupation.

p87

The facts of the case were that on 26th September 1986 the defendant and the
plaintiff entered into an agreement for the sale and purchase of an
uncompleted dwelling house situated at Stand No. 6798, Roma Township,
Lusaka at a purchase price of K240,000.00 (Two hundred and forty thousand
kwacha). Special conditions 8, 10 and 11 of the contract of sale read as
follows:

8. The purchase price is payable as follows:

(a) K50,000.00 on exchange of Contracts (receipt is acknowledged by
the Vendor)
(b) K50,000.00 on receipt of the State Consent to Assign (in cash or
kind).
(c) K40,000.00 on completion.

10. Usual Clause relating to refusal of grant of State Consent or grant of State
Consent at the price other than agreed purchase price shall apply to this sale.
11. The Vendor has agreed to buy from the Purchaser a trailer costing around
K150,000.00 and the parties here to have specifically agreed that it is up to
the Purchaser either to sell the trailer or to pay in cash the sum of
K150,000.00 which is mentioned in Clause 8 (b) hereinbefore. The trailer
mentioned herein is 3 Axle Semi - Trailer with Chassis No. 7397.

The case for the plaintiff company from the affidavit evidence was that
pursuant to the agreement they paid a sum of K90,000.00 in two instalments
as part payment of the purchase price. The State consent was granted at
K120,000.00. On account of the purchase price having been reduced the
defendant became unwilling to proceed with the sale at K120,000.00.
Consequently the plaintiff company also became unwilling to proceed with
the sale of the trailer at K150,000.00 because it had been agreed that the trailer
would be part payment of the house and that its delivery was conditional
upon the purchase of the house and at the discretion of the plaintiff company.
The plaintiff company contended that the defendant removed the trailer from
their premises without authority and that they were unwilling to proceed with
 567

the sale of the trailer to the defendant on any condition other than if the
defendant agreed to sell his property at K120,000.00.

The defendant did not dispute the existence of the contract of sale but
explained that sometime in September 1986 he had approached the plaintiff
company's general manager inquiring for a three axle semi-trailer. According
to the defendant the general manager informed him that they could supply one
at K150,000.00. The defendant further explained that in the course of the
discussions he disclosed that he was trying to raise money by selling an
uncompleted house. According to the defendant the general manager
expressed interest, inspected the house and offered to purchase it at
K240,000.00 The defendant stated further that when this price was reduced to
K120,000.00 he was not prepared to renegotiate the contract price. He advised
his lawyers that if the plaintiff company was unwilling to purchase the house
at K240,000.00 then the contract of sale should be cancelled and K90,000.00
should be refunded, and he would pay K150,000.00 for the trailer. The
defendant further stated that when it was evident that the purchase of the
house would not take place, he approached the plaintiff company with a
certified cheque in the sum of K150,000.00 with a letter from his advocates,
but according to the defendant, the plaintiffs general

p88

manager informed him that the company was proceeding with the purchase of
the house on terms already agreed.
According to the defendant the plaintiff's general manager then allowed him
to take the trailer and return with the cheque; but on the same day that he had
taken the trailer he was approached by a police-officer in the company of an
officer the plaintiff company demanding the return of the trailer, claiming that
he had taken it without authority.

On the foregoing facts the plaintiff issued a writ of summons claiming

damages for conversion of its trailer - Chassis No. 7397 and an order for
mandatory injunction ordering the defendant to return the said trailer. As
already stated the plaintiff obtained an ex parte interim injunction. The
defendant applied for the discharge of the ex parte interim order. The
summons to discharge the interim injunction was couched in the following
language:

"LET ALL PARTIES concerned attend before the Honourable Mrs.

Commissioner Mambilima in Chambers on the 30 day of January 1987 at 9
hours on the hearing of an application on behalf of the above named defendant
for an order that the interim injunction made by the Court herein and dated
26th December, 1986 be discharged and that thereafter there be made an
order requiring the Defendant to pay and the Plaintiff to accept the sum of
K150,000.00, the Plaintiff to release to the Defendant the documents of title
 568

necessary to register the trailer in the Defendant's name; and finally requiring
the Defendant to give an undertaking that in the event that this court should
hereafter be of the opinion that the Defendant is liable to pay any further sums
on the price of the trailer the Defendant will without any further let or
hindrance pay such sums to the Plaintiff AND THAT the costs of and
incidental to this application be costs in the cause. "

The High Court Commissioner refused to discharge the interim injunction

stating that in her view it was desirable that the trailer the centre of
controversy between the parties be where it was and not to be used until the
trial of the matter. The defendant's application was thus unsuccessful.

We would like to take the opportunity of this case to observe that it seems to
us that a number of practitioners and even some trial courts do not exactly
appreciate the status and effect of an ex parte interim injunction. It appears to
us, as evidenced by the present appeal, that an ex parte interim injunction is
equated as an interlocutory injunction. This is incorrect. An ex parte interim
injunction should generally be until a certain day, (see Order 29/1/13, White
Book, 1985 edition). This is so as to enable the other party to be served with
the summons and the affidavit in order to be heard. An ex parte interim
injunction, therefore, runs for a limited time generally followed by an
interlocutory injunction where the applicant establishes his case. On the other
hand the purpose of the grant of an interlocutory injunction is to preserve the
status quo until the rights of the parties have been determined in the action.
(see Order 29/1/2, White Book, 1985 edition).

p89

Turning to the present appeal, counsel for the appellant Mr Levy Mwanawasa
argued two grounds of appeal namely that an injunction should not be granted
where damages would be an adequate remedy and that the balance of
convenience in the present action lies with the defendant if it should be
conducted at all. It must be mentioned that after some indication from the
court Mr Mwanawasa abandoned arguments which touched on the merits of
the case. In relation to the first ground counsel argued that the ruling by the
learned High Court commissioner that the trailer remain where it was and be
unused was a misdirection in relation to the principle governing the grant of
injunctions namely that an injunction should not be granted where damages
would be an adequate remedy. In support of this argument counsel referred
the court to Order 29/1/5 of the White Book (1979 edition). He pointed out
that the writ of summons in the instant case showed that damages would be an
adequate remedy as the value of the trailer was known. He argued that in these
circumstances the remedy of an injunction was inappropriate as the plaintiff
was not likely to suffer unquantifiable damages while the facts of the case
indicated that it was the defendant who would suffer unquantifiable damages
from the disruption of his business. Turning to the second ground counsel
 569

argued that the balance of convenience was in favour of the defendant but, as
damages were an adequate remedy the question did not arise at all. He asked
the court to assist the defendant to use the trailer if the injunction was
dissolved.

Mr Adam informed the court that he supported the lower court's decision
because the property is in dispute and must be protected by way of an
injunction. He pointed out that damages in the instant case would be adequate
compensation for both parties, and argued that the trailer was not part of the
defendant's business prior to the agreement for sale and, therefore, the
question of disruption of the defendant's business did not apply to the facts
of this case.

We have very carefully considered the arguments and submissions by both

counsel, we have also carefully examined the facts of this case. The general
principles governing the grant of injunction are not in dispute. In the case of
Shell BP Zambia Limited v Conidaris and Others (1) this court, in relation to
injunction held, inter alia

"A court will not generally grant an interlocutory injunction unless the
right to relief is clear and unless the injunction is necessary to protect the
plaintiff from irreparable injury; mere inconvenience is not enough.
Irreparable injury means 'injury which is substantial and can never be
adequately remedied or atoned for by damages, not injury which cannot
possibly be repaired'.''

We are satisfied that in the present case an injunction was inappropriate as

damages would be totally adequate. In our view the circumstances which must
obtain before an injunction is granted do not exist in the present case, namely
that damages would be an inadequate remedy. The plaintiff, company being a
trading company, all it needs must be money. In the circumstances damages
would be adequate.

Turning to the application by the defendant we note that the defendant is

seeking a mandatory order which if granted would in our view amount to
determining the action, since the injunction sought would transfer the
ownership of the trailer to the defendant who would then be entitled to use the
same, thereby depriving the plaintiff of any possible right to have the trailer
returned unused. In the case of Turnkey

p90

Properties v Lusaka West Development Company Limited, B.S.K. Chiti (sued

as receiver) and Zambia State Insurance Corporation Limited (2) the appellant
applied in the High Court for an interlocutory injunction to restrain the
respondents from selling or damaging property and to restrain them from
 570

entering upon land or interfering with the appellant's possession thereof

pending the settlement of a dispute concerning a sub-sale. The appellant
soughs to continue in possession of the disputed buildings and to continue
building during the injunction if granted. The injunction was refused by the
High Court. The appellant appealed against that refusal to the Supreme Court.
Ngulube, D.C.J., delivering the judgment of the court had this to say at page
88:

"An interlocutory injunction is appropriate for the preservation or

restoration of a particular situation pending trial; but it cannot, in our
considered view, be regarded as a device by which the applicant can attain or
create new conditions, favourable only to himself, which tip the balance of
the contending interests in such a way that he is able, or more likely, to
influence the final outcome by bringing about an alteration to the prevailing
situation which may weaken the opponents' case and strengthen his own.''

A careful reading of the defendant's summons suggests that this is what the
defendant would wish to achieve in that he wishes that the interim injunction
be discharged, an order be made that he pays and that the plaintiff accepts a
sum of K150,000.00 and thereafter releases to the defendant the documents of
title necessary to register the trailer in his name. To do so would in our view
be to place the defendant in an advantageous position as against the plaintiff.
This we are not inclined to accede to. It was for the foregoing reasons that we
discharged the injunction and refused the defendant's application for a
mandatory order.

As to costs the appeal having succeeded in part and the application having
been refused we consider the case an appropriate one to make no order as to
costs on either side.

Order accordingly

SHELL & B.P. ZAMBIA LIMITED v CONIDARIS AND OTHERS

(1975) Z.R. 174 (S.C.)

SUPREME COURT
BARON, DC.J., GARDNER AND HUGHES, JJ.S.
2ND SEPTEMBER, 1975
S.C.Z. JUDGMENT NO. 37 OF 1975
 571

Flynote

Tort - Trespass to land - What is - Licensee acting in breach of terms of

licence - Whether licensee so acting becomes trespasser.

Tort - Trespass to land - Third person entering on land at invitatian of

licensee with right so to invite - Invitee acting in breach of terms of licence -
Whether invitee so acting becomes trespasser.
Injunction - Interlocutory injunction - When granted.

Headnote

On the 6th December, 1973, the plaintiff (the appellant) entered into a licence
agreeement with C, who was not a party to the proceedings, in respect of a
service station. C had been in occupation since 1967, but the basis of that
occupation prior to the 6th December, 1973, was not stated Very shortly
thereafter C, according to his affidavit, made an arrangement with the
defendants (the respondents) "hereunder he entrusted the running of the
service station to them on account of his long absences from Zambia, and he
deposed that the entire premises had always been in his possession,
supervision and control and that the defendants had remained on the
premises with his permission for the purpose of assisting him in the running
of the station.

On the 13th August, 1974, the plaintiff issued a specially endorsed writ in
which it was claimed that in or about June, 1974, the defendants wrongfully
entered and took possession of the premises and thereafter wrongfully
remained in possession. On the 26th September the plaintiff issued a summons
for an interlocutory injunction alleging that as a result of the trespass by the
defendant the plaintiff could not use the service station for the sale of its
goods and fuel.

The relevant clauses in the affidavit and the licence agreement are set out in
the judgment.

Held:

(i) Trespass to land is an unlawful entry on land in the possession

of another; a licence prevents the entry of the licensee from being a
trespass and renders it lawful.

(ii) If while on the land the licensee behaves in a manner prejudicial to

the interests of the licenser, whether or not in contravention of the
 572

terms of the licence, he does not become a trespasser, he becomes a

trespasser only if the licence is validly revoked and after a
reasonable time has elapsed to enable him to remove himself and his
belongings.

(iii) Equally, a third person who enters on land at the express invitation
of a licensee who has the right in terms of the licence to invite third
persons on to the land cannot be said to have entered unlawfully.

(iv) To seek to found an action in trespass on a breach of the terms of a

licence is to confuse the conduct constituting the alleged breach with
the initial entry (or continued presence) on the land.

(iv) (Gardner, JJ., dissenting) On the facts, it had not been

established that what the defendants were doing was in
contravention of the terms of the license. But even if it were, as
agents of the licensee their presence on the premises was permitted
by the terms of the 45 licence and could not be a trespass against
the plaintiff.

(vi) A court will not generally grant an interlocutory injunction unless

the right to relief is clear and unless the injunction is necessary to
protect the plaintiff from irreparable injury; mere inconvenience is
not enough. Irreparable injury means "injury which is substantial
and can never be adequately remedied or atoned for by damages, not
injury which cannot possibly be repaired".

(vii) Where any doubt exists as to the plaintiff's rights or if the violation
of an admitted right is denied the court takes into consideration the
balance of convenience to the parties. The burden of showing the
greater inconvenience is on the plaintiff.

(viii) The rights of the parties in this case being in dispute, and the
potential loss to the defendants being far greater than the
inconvenience the plaintiff would suffer if left to rely on its remedy
in damages, this was not a proper case for the court of an
interlocutory injunction.

Cases reffered to:

(1) Shell - Mex & B P Limited v Manchester Garages Ltd (1971) 1 All ER
841.
(2) Addiscombe Garden Estates Ltd v Grabbe (1957) 3 All ER 563.

For the appellant: F.G. Lever, Jacques & Partners.

For the respondent: G.F. Patel, Musa Dudhia & Co.
 573

______________________________________
Judgment

BARON,DCJ.: This is an appeal against the dismissal by the High Court of

the plaintiff's summons for an interlocutory injunction. On the 6th December,
1973, the plaintiff entered into a licence agreement with one Cavadias, who is
not a party to these proceedings, in respect of a service station in Emmasdale,
Lusaka. It appears from the papers that Cavadias had been in occupation of
the premises since 1967, but precisely what was the basis of that occupation
prior to the 6th December, 1973, is not stated. Very shortly thereafter the
licensee, according to his affidavit in these proceedings, made an arrangement
with the defendants which he expressed in the following terms:

"8. On account of my long absences from Zambia I have entrusted the

running of the petrol filling station in the said premises to: Messrs Angelos
Conidaris, Pindaros Conidaris and George Conidaris with effect from 15th
December, 1973.
9. The entire premises which are the subject matter of this action have
always been in my possession, supervision and control and Messrs Angelos
Conidaris, Pindaros Conidaris and George Conidaris have remained on the
premises with my permission for the purpose of assisting me in the running of
my petrol filling station for the reason set out in paragraph (8) above."

On the 13th August, 1974, the plaintiff issued a specially endorsed writ in
which it was claimed that in or about June, 1974, the defendants wrongfully
entered and took possession of the premises and thereafter

p177

wrongfully remained in possession. On the 26th September the plaintiff issued

a summons for an interlocutory injunction. In the affidavit in support it was
alleged that:

"As a result of the said trespass by the defendants on the premises, the
plaintiff cannot use the petrol and service station thereon for the sale of its
goods and fuel. The plaintiff is therefore losing its gross margin on sales
which . . . I estimate [at] . . . about K738 per month . . ."

Precisely what was the basis of the plaintiff's complaint against the defendants
is obscure; it seems that other proceedings had subsequently been commenced
to which other persons had been made parties and in which the allegations had
been set out, but on the papers before us there is nothing of relevance save
what I have set out above and of course the licence agreement itself, to the
terms of which I will refer later.
 574

Mr Lever on behalf of the plaintiff based his case on the submission that the
plaintiff is entitled to proceed against the defendants as trespassers
notwithstanding that they are not trespassers against the licensee and even if
they are on the premises as invitees of the licensee. Mr Lever used "invites" in
the widest possible sense, namely as including employees. He submitted that
the relationship between the defendants and the licensee was irrelevant, and
initially he went so far as to submit that even if what the defendants were
doing was permitted in terms of the licence agreement this could not assist
them.

Clearly the proposition stated in these wide terms is untenable. For instance,
as Mr Lever finally conceded, an employee of the licensee doing only what
was contemplated and permitted by the licence cannot be a trespasser against
the licenser; equally, a customer coming on to the premises to buy petrol
cannot, without more, be a trespasser against the plaintiff. But even if one
were to qualify Mr Lever's proposition by restricting its operation to persons
who were in breach of the provisions of the licence it would still in my view
be untenable; the relationship between the licensee and the alleged trespasser
cannot be ignored. On the facts of this case it is unnecessary to decide the
point, but because it was argued at such length and with such tenacity by Mr
Lever I think I should express my views on it.

Trespass to land is an unlawful entry on land in the possession of another; a

licence prevents the entry of the licensee from being a trespass and renders it
lawful. If while on the land the licensee behaves in a manner prejudicial to the
interests of the licenser, whether or not in contravention of the terms of the
licence, he does not become a trespasser; he becomes a trespasser only if the
licence is validly revoked and after a reasonable time has elapsed to enable
him to remove himself and his belongings. Equally, a third person who enters
on land at the express invitation of a licensee who has the right in terms of the
licence to invite third persons on to the land cannot be said to have entered
unlawfully. If while on the land the invites conducts himself in a manner
prejudicial to the interests of the licenser no doubt the latter will have his
remedy, certainly against the

p178

invitee and perhaps also, vicariously, against the licensee. But even if that
remedy includes, as against the licensee, the right to revolve the licence, it
must be a remedy directly in respect of the conduct complained of, not
indirectly by way of trespass; it cannot in my view be alleged that an entry is
unlawful when in fact that entry is permitted by the terms of the licence. To
seek to found an action in trespass on a breach of the terms of the licence
involves a fundamental fallacy, a confusion between the conduct constituting
the alleged breach and the initial entry (or continued presence) on the land.
 575

It is necessary therefore to decide whether on the facts of this case the licensee
had the right to invite or permit third persons to enter on to the land. The
written agreement between the plaintiff and the licensee describes itself as a
licence. Clause 1 of the operative part commences with the words:

"1. The Company being entitled to and remaining in occupation and

possession of the station hereinafter defined . . ."

Clauses 2, 3 4 and 5 read:

"2. The purposes for which this licence is granted are to enable the
licensee to carry on upon the station:

(a) The business of selling by retail (subject as hereinafter provided)

such grades of automotive fuel (which expression in this licence means and
includes petrol and any other fuel whatsoever which may be or have been
introduced for use in automotive vehicles) oils greases and other petroleum
products as the company may from time to time nominate;
(b) the business of rendering and supplying (subject as herein after
provided) such services and commodities (other than as aforesaid) as are
commonly rendered and sold at garages filling and motor service stations;
(c) the business of garaging motor vehicles and of maintaining
servicing repairing and overhauling motor vehicles and the component parts
thereof and accessories thereto;
(d) the business of a dealer in new and secondhand motor vehicles;
(e) such other business as may be agreed in writing by the company
and the licensee.

3. This licence is exclusively personal to the licensee.

4. This licence shall not confer upon the licensee any right to occupy or
to possess the station or any part or parts of the same and such occupation and
possession and the rights to such occupation and possession shall at all times
during the subsistence of this licence remain vested in the company or its
successors in title.
5. This licence shall commence on the 1st day of January, 1974, at the
end of 10 years from the commencement of this licence, namely on 1st
January, 1984, or any date thereafter, the company shall have the option to
review the terms and conditions of this licence."

p179

Clause 6 sets out what can only be described as detailed covenants by the
licensee, and in particular the following sub-clauses:

" (d) continue to operate and carry on the said businesses at and upon
the station and shall ensure that the forecourt forming part of the station is
kept open and staffed for the sale of automotive fuel during the whole period
 576

of twenty-four hours on each and every day unless otherwise agreed by the
company in writing;

(e) employ competent staff and shall ensure that the standard of
service and sales at the station is efficient;
(m) ensure that the said businesses carried on upon the station are
continuously and effectively supervised controlled and carried out during
normal working hours by competent and responsible employees of the
licensee."

Clause 7 contains "covenants" by the company. Clause 8 deals with the

mutual rights and obligations of the parties in certain events and clause 9 deals
with termination in the following terms:

"9. This licence shall terminate upon the happening of any of the events
following that is to say:

(a) Upon the expiration of ninety days' notice in writing in that behalf
served by the licensee upon the company;
(b) upon the expiration of ninety days' notice in writing in that behalf
served by the company upon the licensee if the licensee shall have failed to
perform or committed any breach of the obligations herein undertaken by the
licensee or in the event of the company no longer being entitled to the
occupation and possession of the station;
(c) forthwith upon service by the company upon the licensee of notice
in writing in that behalf if the licensee shall have become bankrupt or (being a
corporation) shall have entered 30 into liquidation whether voluntary or
compulsory or if the licensee shall have entered into any arrangement or
composition with creditors generally AND if at the expiration of one calendar
month after the termination of this licence any chattel or thing belonging to
the licensee shall remain upon the station then upon such expiration the
company shall become the agent of the licensee with authority at the expense
of the licensee to remove store sell or otherwise dispose of such chattel or
thing as the company shall think fit."

It is trite that an agreement is not to be construed as a licence simply because

the parties so describe it; "the relationship of the parties is determined by law
on a consideration of all the relevant provisions of the agreement" (Halsbury's
Laws of England, Vol. 23, p. 427, para 1022). I have some reservations as to
whether this agreement is in truth a licence (see for instance the comments of
Buckley, LJ, in Shell - Mex & B.P. Ltd v Manchester Garages Ltd [1] at p.
846, and Addiscombe Garden Estates Ltd v

p180
 577

Crabbe [2], but Mr Patel on behalf of the defendants was content to argue the
matter on the basis that it was and I will assume in favour of the plaintiff that
it is. The question is whether on a proper construction of the whole document
the licensee had the right to invite or permit the defendants to enter and
remain on the station. Mr. Lever submitted that he had not, and he pointed to
clauses 1, 3 and 4 and argued that in terms of these clauses occupation and
possession of the station remained vested in the plaintiff and that the right of
the licensee physically to be on the land was in terms of clause 3 exclusively
personal to him.

I find it unnecessary to consider the various senses in which the words

"possession" and " occupation" are used in relation to land. Suffice it to say
that they are normally used in contrasting senses, and while there is no
difficulty with the concept that possession of the plaintiff's estate or interest in
the land remains vested in it, I am at loss to understand how it can be argued
that in view of the rights and obligations of the parties as set out in such great
detail in the agreement the licensee does not have the right to occupy the
station at least to the extent that he shares that right with the plaintiff. Mr
Lever suggested that the plaintiff retained exclusive occupation of the land
and the licensee had the right of physical presence only in such of the
buildings and other portions of the station as were necessary to enable him to
conduct his business thereon; Mr Level was not however able to suggest how
this submission could be reconciled with the words in clause 4 " or in part or
parts f the same". In my view, to suggest that the licensee in this case does not
have the right to occupy the station is to do violence to language and to give a
meaning to the word "occupy" which is in direct conflict with the rights and
obligations of the licensee set out in the agreement. In my judgment clause 4
of the agreement read in the context of the whole must at best from the
plaintiff's point of view be construed as meaning that both parties are deemed
to be in occupation of the land.

Mr Lever argued also, but without any great enthusiasm, that clause 3 of the
agreement gave the licensee personally the right to be on the land but took
from him the right to bring anyone else thereon. He suggested that although
the remainder of the agreement clearly contemplated that other people would
be on the land, this clause retained in the licensor the right to turn any such
person off at will. I confess myself quite unable to appreciate such an
argument. If clause 3 removes from the licensee the legal right to invite or
permit anyone else to enter on the land, then to do so becomes a breach of the
agreement; it matters not that the licenser might choose not to exercise his
rights consequent on such breach. When one considers the rights, and indeed
the obligations, of the licensee set out in such detail in the agreement it is
ludicrous to suggest that he can exercise those rights and carry out his
obligations entirely by himself, and it is manifest that this was never the
intention of the paries. The parties clearly contemplated and intended that the
licensee would engage competent staff: at all levels, including the managerial
 578

level, and it cannot therefore be argued that to do so is a breach of the

agreement. In these circumstances I am unable to give any meaning to clause
3 of the agreement which is not totally inconsistent with the remainder; it
must therefore be ignored.

In the result I am fully satisfied that the terms of this licence give the licensee
the right to invite and permit third persons to enter on to the land, and that if
the plaintiff complains that the defendants while on the land committed a
breach of the terms of the licence its remedy, whatever it might be, is certainly
not in trespass. On the papers before us it is far from clear what the defendants
were alleged to be doing and in what respects this was alleged to be in breach
of the licence. It might be argued that the statement in the plaintiff's affidavit
in support that -

"as a result of the said trespass . . . the plaintiff cannot use the petrol and
service station . . . for the sale of its goods and fuel"

can be construed only as an allegation that the defendants were selling some
other company's products. This is by no means a necessary implication,
another possible construction is that the plaintiff was unable to sell his
products because it regarded the defendants as trespassers (as is clearly the
case) and declined to supply them with fuel and other products or to do any
business with them. Be that as it may, what is abundantly clear is that so far as
this court is concerned there is nothing entitling us to go behind the affidavit
of the licensee as to his relationship with the defendants, who must in my
judgment be held to be the duly authorised agents of the licensee. Even if
what the defendants were doing was in contravention of the terms of the
licence (which has not been established), as agents of the licensee their
presence on the premises was permitted by the terms of the licence and could
not be a trespass against the plaintiff. On this ground alone the summons
cannot in my view succed.

However, the matter goes further. As Mr Patel on behalf of the defendants

submits, even if all other questions were decided in favour of the plaintiff this
would still not be a proper case for the grant of an 30 interlocutory
injunction. The principles upon which the court acts are set out in paragraph
763 of Halsbury's Laws of England, Third Edition, Volume 21:

"... all the court usually has to consider is whether the case is so clear and
free from objection on equitable grounds that it ought to interfere to preserve
property without waiting for the right to be finally established . . . the modern
tendency is . . . only to grant interlocutory injunctions where the right to relief
is clear."

and in paragraph 765 at page 366:

 579

"The plaintiff must also as a rule be able to show that an injunction do

until the hearing is necessary to protect him against irreparable injury; mere
inconvenience is not enough."

Irreparable injury means ''injury which is substantial and can never be

adequately remedied or atoned for by damages, not injury which cannot
possibly be repaired"
(Halsbury, ibid., paragraph 739).

Finally on this point the following passage appears in paragraph 766 of the
same volume of Halsbury:

p182

"Where any doubt exists as to the plaintiff's right, or if his right is not
disputed, but its violation is denied, the Court, in determining whether an
interlocutory injunction should be granted, takes into consideration the
balance of convenience to the parties and the nature of the injury which the
defendant, on the one hand, would suffer if the injunction was granted and he
should ultimately turn out to be right, and that which the plaintiff, on the other
hand, might sustain if the injunction was refused and he should ultimately turn
out to be right. The burden of proof that the mcon venience which the
plaintiff will suffer by the refusal of the injunction is greater than that which
the defendant will suffer, if it is granted, lies on the plaintiff.''

I entertain no doubt whatever that this is a contested matter so far as the rights
of the parties are concerned and that the problems and their solutions are far
from clear; and so far as the balance of convenience is concerned I have even
less doubt that if this injunction were to be granted and the defendants were
subsequently shown to have been right the loss to them would be far greater
than the inconvenience which the plaintiff will super if loft to rely simply on
its remedy in damages. The plaintiff is after all simply in business to sell its
products, and will not in fact do so directly; if it obtained possession of this
service station it would no doubt enter into a fresh licence agreement with
some other person. Hence the only loss the plaintiff can suffer is of money, a
matter which is adequately compensated by an award of damages should the
final decision in the case go in its favour. For this reason also therefore the
summons for an interlocutory injunction was in my view ill conceved.

In the result the learned judge below was in my judgment correct in

dismissing the summons. I would dismiss this appeal with costs.

Judgment

Gardner JS: It is not disputed in this case that the appellant company is the
owner or lessee of the premises entitling it to possession subject of course to
 580

any rights which may have been granted to others by licence or otherwise. It is
also not disputed that the appellant company's solicitors wrote to two of the
respondents on the 16th July, 1974, requiring them to vacate the premises
immediately. By affidavit dated the 14th August, 1974, of one Singh, an
employee of the appellant company, in support of the application for an
interlocutory injunction it was deposed that the respondents were trespassing
upon the premises and as a result of such trespass the respondent could not use
the petrol service station thereon for the sale of its goods and fuel. The loss
occasioned by this conduct of the respondents was calculated at K738 per
month by Mr Singh and no evidence by way of affidavit or otherwise has been
tendered on behalf of the respondents to rebut these averments.

The exact words used in the affidavit of the defendant were as follows:

"That as a result of the said trespass by the defendants on the premises, the
plaintiff cannot use the petrol and service station thereon for the sale of its
goods and fuel "

p183

It would be an abuse of the English language to construe this sentence in any

way other than that the presence of the respondents physically prevents the
appellant from using its petrol and service station for the sale of its own
products.

It is my view that the appellant having established a title to the premises and
having averred that the respondents are trespassers it is for the respondents to
set up a defence to the appellant's claim by establishing some form of title to
the premises or otherwise showing that they are lawfully on the said premises.
By "lawfully" I mean "with the permission of the appellant company". Such
permission can of course be either express or implied.

The learned trial judge has treated the parties as having been in the position of
landlord and tenant, and whilst it was not improper of the learned judge to
quote in aid cases relating to landlord and tenant where the law applicable
would be the same as that relating to grantors and licensees, the resulting
judgment in this case is defective because no 15 one drew the attention of the
learned trial judge to a most important clause in the licence dated 6th
December, 1973, by the respondent company to one Cavadias. The clause is
clause 4 and reads as follows:

"This licence shall not confer upon the licensee any right to occupy or to
possess the station or any part or parts of the same and such occupation and
possession and the rights to such occupation and possession shall at all times
during the subsistence of this licence remain vested in the company or its
successors in title."
 581

It is my view that this clause read in the context of the whole licence means
that it was the intention of the parties that the respondent should at all times
retain legal possession of the premises and the licensee had no right of
occupation other than that which was necessary for the use of the premises as
a petrol retail and service station. Had the attention of the learned judge been
drawn to this clause he must have found that the appellant was in possession
of the premises for the purpose of enforcing rights against third parties such as
the respondents, and he could not have found that it was necessary to join the
licensee as a party to the action as being the only person entitled to sue for
trespass Such a situation could only occur where an ostensible licence in fact
had the effect of a tenancy and this effect is completely negatived by clause 4
of the Agreement.

Mr Lever on behalf of the appellant endeavoured to persuade the court that

even bona fide employees of the licensee could be evicted by the appellant.
This contention is untenable having regard to the fact that, apart from a
common sense attitude towards business, the licence itself imposes an
obligation on the licensee under clause 6 (e) to employ competent staff to
ensure that the standard of service and sales at the station is efficient, and
clause 6 (m) to ensure that the businesses on the premises are continuously
and effectively supervised and controlled by competent and responsible
employees.

p184

It is quite apparent that under the terms of the licence, which is expressed
under clause 3 to be "exclusively personal to the licensee", and, under clause 6
(f), forbids the sale or disposal of the business, that the licensee could not
lawfully purport to sub-let or assign his rights under the licence. Such rights
were the use of the premises as a petrol outlet and service station.

The licensee was granted the licence for the purposes set out in paragraph 2 of
the agreement. Sub-paragraph (a) provides for the licensee to carry on upon
the station the business of selling by retail petroleum products. The general
agreement under the licence was that the licensee should sell the products of
the licenser.

It follows from a general construction of the licence agreement that the

licensee was entitled and indeed obliged to employ competent and efficient
employees to assist him in running the business and it was of paramount
importance that such employees must sell and promote the sales of the
appellant's petroleum products.

It is my view that the appellant having established a prima facie right to

possession of the premises it is for anyone who seeks to use the premises to
 582

establish a right to do so either by some form of legal or equitable estate or by

express or implied permission. The respondents did not seek to establish that
they have express permission but it has been argued on their behalf that they
are entitled to be there because the licensee Mr Cavadias has authorised them
to be there. It is for the respondents to establish not only such authorisation
but also that the licensee had power to give such authorisation. The only
power that the licensee has Is under the terms of his licence agreement which
enables him to employ competent and efficient employees for the paramount
purpose of selling the appellant's petroleum products.

The respondents have endeavoured to establish their right to be on the

premises by filing an affidavit, dated 23rd September, 1974, by Cavadias, in
which he deposes that he has been the occupant of the premises since April,
1967, and goes on in clauses 8 and 9 to give the reason For the use of the
premises by the respondents. Clauses 8 and 9 read as follows:

"8. On account of my long absences from Zambia I have entrusted the

running of the petrol filling station in the said premises to: Messrs Angelos
Conidaris Pindaros Conidaris and George Conidaris with effect from 15th
December, 1973.
9. The entire premises which are the subject matter of this action have
always been in my possession supervision and control and Plessrs Angelos
Conidaris, Pindaros Conidaris and George Conidaris have remained on the
premises with my permission for the purpose of assisting me in the running of
my petrol filling station for the reason set out in paragraph (8) above."

It will be seen that the licensee has stated that he has entrusted the running of
the petrol station to others with effect from 15th December, 1973.

The ordinary meaning of these words would be that he has left the
respondents to "carry on" the business and if this were the only clause in the
affidavit it would appear that the licensee could not do so because it is in
contravention of his rights as licensee to carry on the business "personally"
under clauses 2 and 3.

Paragraph 9 of the affidavit however apparently qualifies or contradicts the

previous paragraph. In this paragraph the licensee says that the respondents
have remained on the premises with his permission for the purpose of
assisting him in the running of his petrol station. When read together the two
clauses leave me in some doubt as to the respondent's status vis-a-vis the
licensee. If they were bona fide salaried employees it could be said that they
were entitled to be there provided the licensee personally "carried on" the
business, but if they were independent agents they had no implied right to be
there.
 583

The situation is complicated a little by the fact that the letter demanding
vacation of the premises was addressed to only two of the respondents
whereas the writ as amended refers to all three respondents but having regard
to my later comments this question does not fall to be resolved.

The respondents have not satisfactorily established in what exact capacity they
purport to occupy the premises, and in these circumstances alone I would find
that they have no right to be on the premises. However, having regard to the
licensee's obligation under clause 6 (r) to purchase a minimum quantity of
automotive fuels from the appellant and under clause 6 (a) to use his best
endeavours to sell a minimum quantity of such fuel every month it follows
that any person employed by or acting as agent for the licensee cannot
possibly be using the premises with the implied permission of the appellant if
he does not honour the two obligations to which I have referred. There is
unrebutted evidence that the presence of the respondents on the premises is
preventing the appellant from selling its products and in consequence their
presence on the premises is unlawful and they are trespassers.

I have had the advantage of reading the judgment of the learned Deputy Chief
Justice and I entirely concur with his view that, by virtue of the fact that the
damages in this case are not irreparable and can be compensated for by the
recovery of pecuniary damages, the grant of an interim injunction is
inappropriate and the appeal should be dismissed.

Judgment

Hughes JS: I have had the opportunity of reading the judgment delivered by
the learned Deputy Chief Justice. Apart from the reservation he has expressed
regarding the nature of the agreement between the parties, which are not part
of the ratio decidendi and are therefore obiter I fully concur with his
judgment. I would also dismiss this appeal with costs.

Appeal dismissed

TURNKEY PROPERTIES v LUSAKA WEST DEVELOPMENT

COMPANY LTD., B.S.K. CHITI (SUED AS RECEIVER), AND
ZAMBIA STATE INSURANCE CORPORATION LTD. (1984) Z.R. 85
(S.C.)

SUPREME COURT
 584

SILUNGWE,C.J., NGULUBE, D.C.J., AND MUWO, J.S

16TH AND 17TH MAY, AND 15TH JUNE, 1984
(S.C.Z. JUDGMENT NO. 3 OF 1984) 5

Flynote

Civil Procedure - Interlocutory injunction - Alternative remedy in damages -

Consideration of.
Civil Procedure - Interlocutory Injunction - Appropriate when - Arguments
and submissions in - Court not to make comment in - Device not to be used
as.
Civil Procedure - Interlocutory injunctions - Device to create new conditions
- Condemnation of.
Civil Procedure-lnterlocutory injunction - Merits - Impropriety of Pre-
empting decision.

Headnote

The appellant applied in the High Court for an interlocutory injunction to

restrain the respondents from selling or damaging property and to restrain
them from entering upon land or interfering with the appellant's possession
thereof pending the settlement of a dispute concerning sub-sale. The appellant
sought to continue in possession of the disputed buildings and to continue
building during the injunction if granted. The injunction was refused lay the
High Court. This was an appeal against that decision.

held:

(i) An interlocutory injunction is appropriate for the preservation

or restoration of a particular situation pending trial.

(ii) It is improper for a court hearing an interlocutory application to

make comments which may have the erect of pre-empting the
decision of the issues which are to be decided on the merits to the
trial.

(iii) An interlocutory intimation should not be regarded as a device

by which an applicant can attain or create new conditions
favourable only to himself.

(iv) In applications for Interlocutory injunctions the possibility of

damages being an adequate remedy should always be considered.

Authority and Cases referred to:

(1) Chitty and Contracts, (25th Edn.) para. 1764.
(2) Gordon Hill Trust Ltd. v Segall [1941] 2 All. E.R. 379.
 585

(3) Shell and BP Zambia Ltd. v Conidaris and Ors. (1975) Z.R. 174.

Legislation referred to:

High Court Act, Cap. 50, Ord. 27.

For the appellant: A.M. Hamir, of SolIy Patel, Hamir and

Lawrence.
For the first respondent: G. Chilupe, of Chilupe and Company.
For the second and third respondents:B.S. Chiti, of Zambia State Insurance
Corporation Limited.

Judgment

NGULUBE, D.C.J., delivered the judgment of the court.

This is an appear against the refusal by a High Court judge to grant an

interlocutory injunction. The brief history of the case is as follows. The case
cantered around stand No. 1282 Chelston, Lusaka, of which the receiver of the
registered owner is the second respondent. Houses are being constructed on
this stand for sale to the public as individual units. On 26th August, 1981, a
Law Association of Zambia form of contract of sale wits entered into between
the first respondent as vendor and the appellant as purchaser of this property
for a sum of K350,000. Subsequently, on 9th September, 1981, the receiver as
vendor entered into a contract of sale of the same stand with the first
respondent as purchaser for a sum of K250,000. This contract appears to have
been the culmination of sundry previous contracts and of a multilateral
arrangement covering all the parties in this action. Differences arose and the
appellant issued a writ. The appellant applied for an interim injunction
(presumably under Order 27of the High Court Rules) to restrain all the
respondents from selling or damaging the property and to restrain them from
entering upon the land or interfering with the appellant's possession thereof as
builder

p87

and intended purchaser under the sub-sale. The learned judge considered that,
as damages would be an adequate alternative remedy, an interlocutory
injunction would not be granted. The appellant has appealed against that
determination.

The submissions made by Mr Hamir, on behalf of the appellant, can be

summarised as follows:

(a) That the learned judge was wrong to say that the appellant appeared to
have an adequate alternative remedy in damages because, in the eyes of law,
 586

contracts for the sale of land have long been accorded a special position where
damages are generally considered inadequate and specific performance the
more appropriate remedy, even in a case where the purchaser intended to
resell the property. In this regard, reference was made to, inter Anglia, para
1764 of Chitty (1) on Contracts (General Principles) With Edition, which is to
that effect;
(b) That the appellant has expended a considerable sum in contemplation of
eventually becoming the owner and sole developer of the land and that, as the
planned developments would result in a housing estate worth K9 million, the
vastness of the proposed investment was such that damages would lie
inadequate and, for that reason, an interim injunction ought to have been
granted;
(c) That the interim injunction would enable the appellant to remain in
possession and to continue building the units for sale to the public so as to
enable the first respondent; to sell the first batch of units and to use the
proceeds, in terms of the contract between the respondents, to pay the
purchase price to the second and third respondents who would then give title
to the first respondent; who would, :in turn, then be able to complete their
contract with the appellant.

The response to these submissions by Messrs Chilupe and Chiti, on behalf of

the respondents, can be summarised as follows:

(1) That the learned judge was not wrong in holding, that damages could be
an adequate alternative remedy and that, in any case, as the appellant only has
a claim to an equitable right, an interim injunction cannot be grunted since it
should only be issued in support of a legal right;
(2) That the remedy of specific performance would not be available against
the first respondent since they do not have title to the land which they can
convey to the appellant;
(3) That the contracts are invalid and, in any case, stipulated that the first
respondent, and not the appellant, would sell! the first batch of residential
units so that the appellant could not seek to restrain the respondents in the
manner sought;

p88

(4) That the appellant was a developer who would have sold the units to be
constructed and can, therefore not claim a personal or emotional interest in the
land and that, in these circumstances, monetary damages would be adequate.

As can be seen from the foregoing summary, the submissions and arguments
before us have ranged far and wide. Yet, in the view that we take, it was not
all that necessary for a proper determination of the issue at hand, to broaden
the scope of the inquiry to include questions touching on the validity or
 587

enforceability of the contracts; or the ultimate propriety and adequacy or

otherwise of one final remedy as opposed to another which are the very
matters upon which the trial judge must adjudicate at the proper time. Indeed,
we do not believe that it would be proper for us, at this stage, to make any
comments which may have the effect of pre-empting the issues which are to
be decided on the merits at the trial. Thus we do not think that we can
properly be called upon to say that the, appellant is or is not entitled to
specific performance; nor can we concern ourselves with what has become of
the contracts and if they are still capable of performance or not. Our starting
point must be to accept that one contract was entered into between the
respondents inter se and another contract between the first respondent and the
appellant. The appellant claims to be a purchaser under the sub-scale which,
prima facie, is a contract which may validly be entered into and in which the
first respondent could, in equity, legitimately describe himself as the
beneficial owner. We need only cite Gordon Hill Ltd. v Segall (2), as one of
the many authorities for the recognition of the validity of a contract of sub-
sale. We must accept, also, that the appellant appears to be a builder and
developer, as well as a purchaser under the sub-sale which was or is
undoubtedly contingent upon the due performance of the main contract of sale
between the respondents inter se. It is obvious, also, that the res respondents
have their own rights and interests in the property too. The basic question,
therefore, is whether the learned judge was wrong refusing to grant the
interlocutory injunction and whether it is necessary to grant the interlocutory
injunction to the effect requested for by the appellant in order to preserve a
particular state of amass best calculated to ensure that, at the end of the day,
the best type of justice has been done to all the parties.

An interlocutory injunction is appropriate for the preservation or restoration of

a particular situation pending trial; but it cannot, in our considered view, be
regarded as a device by which the applicant can attain or create new
conditions, favourable only to himself, which tip the balance of the
contending interests in such a way that he is able, or more likely, to influence
the final outcome by bringing about an alteration to the prevailing situation
which may weaken the opponents' case and strengthen his own. If we
understood Mr Hamir's third submission correctly, this is what the appellant
would wish to achieve by continuing to build under the contracts in dispute
and thus place the respondents in a position where they would most probably
be able to perform the contracts and unable to

p89

resist performance on their current arguments which, it is reasonable to

assume, may be the present basis of their defence to the clams In the main
action.
 588

The major criticism of the learned High Court judge's determination

concerned the holding that damages appeared to be available as an adequate
alternative remedy in this case. In our considered opinion, the learned judge
was on firm ground bearing in mind the stage of the action namely, an
interlocutory application for an injunction pending trial in circumstances and
on facts where it was necessary to weigh the contending rights and to find
where the balance of convenience to the parties lay. Damages are the
universal remedy for breaches of contract and are practically always an
alternative remedy to a claim for specific performance even of a contract for
the sale of land. The issue, therefore, is one of adequacy and it would be
inappropriate, at this interlocutory stage, to do any more than to assess on the
available material the probable consequences to the rights of the parties of the
refusal, or the grant of an interlocutory injunction. In order to succeed, the
appellant should have demonstrated that, not only was their right to the relief
sought clear, but above all, that the injunction is necessary to protect them
from irreparable injury. In Shell and BP Zambia Ltd W v Conidaris and ors.
(3),this court reaffirmed the principles underlying the grant of an
interlocutory in- junction and, on that authority, the learned judge could only
be faulted if it had been shown that the appellant would suffer a substantial
injury which could never be adequately remedied or atoned for by damages. A
purchaser who is principally a developer of residential units for sale to the
public and who, in the event of loss of the land, stands to lose profits, even on
a K9 million project, does not thereby necessarily stand in peril of suffering
the sort of loss referred to in the Shell and BP case. The onus was on the
appellant to establish that the greater inconvenience pointed in his direction
and that an injunction was necessary on the principles to which we have
referred. The submissions in this respect cannot stand for the additional reason
that, even in the absence of an interlocutory injunction, it is apparent that the
remedies claimed in the writ will still be viable propositions at the trial, if only
the parties can get on with the action which, we were given to understand has
not gone past the obtaining of an order for directions. An application for an
interlocutory injunction by its nature, is certainly not a good reason for the
lack of any appreciable progress on the main action.

It follows from what we have said that this appeal must fail. The costs will
follow the event and will be taxed in default of agreement.

Appeal dismissed

EDWARD JACK SHAMWANA v LEVY MWANAWASA (1994) S.J. 93

(H.C.)

HIGH COURT
CHIEF JUSTICE OF ZAMBIA
20TH AND 30TH MAY, 1994
 589

Flynote

Injunction - Referring to plaintiff as 'treason ex-convict' in light of a full

presidential pardon

Headnote

The plaintiff announced his intention to contest the Mumbwa by-election and
the defendant started referring to him as 'a treason ex-convict'. The plaintiff
then applied for an interim injunction to restrain the defendant “by himself,
his agents whomsoever or servants referring to the plaintiff as a treason ex-
convict or as a convict in the light of a Presidential absolute and
unconditional pardon”.

Held:

(i) Any judge faced with an ex parte application for an injunction is

duty bound to critically examine and not gloss over such application
and to be satisfied that the situation revealed justifies an order on an
urgent basis pending an inter parte hearing shortly thereafter

For the plaintiff: Mr C. Hakasenke of Shamwana and Company.

For the defendant: In person.
_________________________________________
Ruling

CHIEF JUSTICE OF ZAMBIA: delivered the judgment of the court.

On 5th May,1994, the Plaintiff issued a Writ of Summons out of the principal
registry endorsed with a claim for:

“1.Damages for malicious slander uttered at different fora since plaintiff

declared his intention to stand as a President of National Party and as a
candidate for the Mumbwa Constituency by election that the plaintiff is an ex-
convict or similar sentiments asserting that for that reason he is unfit to govern
Zambia when it fact it is a fact that Political Prisoners have been elected
leaders in their countries throughout the World, and the plaintiff received a
complete and unconditional pardon.

2. Injunction restraining the Defendant, his agents whosoever, or

servants referring to the plaintiff as treason ex-convict or as convict in the
light of a Presidential absolute and unconditional pardon.

3. Further or other relief.”

 590

By an ex parte summons, the plaintiff applied for an interim injunction to

restrain the defendant “by himself, his agents whomsoever or servants
referring to the plaintiff as a treason ex-convict or as a convict in the light of a
Presidential absolute and unconditional pardon”. Although I had during the
hearing refused an application made by the defendant under Order 32/13 of
the Rules of the Supreme Court (1993 White Book) to adjourn the whole of
the hearing into open court, I agreed to deliver this ruling in open court of the
issues addressed which I consider to be of general importance.

when the application was lodged, I did not consider it appropriate to proceed
ex parte and directed that the application be heard inter parte. At the last but
one adjournment, the plaintiff remarked to the effect that in the normal course,
he should have been given an ex parte order.

p95

Let me take this opportunity to dispel the notion, which unfortunately seems
to be widely held, that ex parte injunctions are available more or less as a
matter of course; almost automatically for the asking. They are not and in this
regard I wish to draw attention to Order 29 R.S.C.1993 White Book,
especially the discussion at Order 29/1/8. I also wish to borrow from the
language of paragraph 1051, Halsbury’s Laws of England, 4th Edition,
Volume 24, that an injunction will not usually be granted without notice, but
if the court is satisfied that the delay caused by proceeding in the ordinary way
might entail irreparable or serious mischief, it may make a temporary order ex
parte upon such terms as it thinks just. The granting of ex parte injunctions is
the exercise of a very extraordinary jurisdiction, and therefore the time at
which the plaintiff first had notice of the act complained of will be looked at
very carefully in order to prevent an improper order being made against a
party in his absence, and if the applicant has acquiesced for some time it will
not be granted.

The passage from Halsbury’s supports the proposition that it is an elementary

requirement of fairness and justice that as a general rule both sides be afforded
the opportunity to be heard and where it is sought to depart from this norm, as
in an ex parte application for an injunction, strong grounds must be shown to
justify the application being made ex parte. The application must be made
promptly as soon as the plaintiff becomes aware of his or her cause of action
and there is need either to preserve the status quo or to prevent irreparable or
serious mischief. Ex parte injunctions, as the learned authors of the White
Book and Halsbury’s Laws of England observe, are for cases of real urgency
where there has been a true impossibility of giving notice to the opponent.
what is more, the material that is placed before the court on an ex parte
application for an injunction should disclose, at first glance or prima facie, a
strong case on the merits for the possible grant of an interlocutory injunction
once an inter partes hearing takes place. I make no apology for holding the
 591

very firm view that any judge faced with an ex parte application for an
injunction is duty bound to critically examine and not gloss over such
application and to be satisfied that the situation revealed justifies an order on
an urgent basis pending an inter parte hearing shortly thereafter on a date to be
specified preferably in the ex parte order, in terms of the practice direction
recently issued by me on the subject. I was not satisfied on the material
placed before me that this was a proper case for an ex parte order on an
emergency basis.

I now turn to the application which has since been heard inter partes. In
coming to my decision in this ruling, I have heeded the caution given in such
cases as Turnby Properties v Lusaka West Development Company Ltd (1984)
ZR 85 that I should in no way pre-empt the decision of the issues which are to
be decided on the merits and the evidence at the trial of the action. I have also
considered the authorities cited under paragraphs 167 and 168 of Vol. 28,
Halsbury’s Laws of England, 4th edition, in support of the statement that:

“because of the court’s reluctance to fetter free speech and because of the
questions that arise during the proceedings, such as whether the meaning is
defamatory, whether justification or fair comment are applicable and as to
malice, are generally for the jury - (in our case the

p96

trial judge) - interlocutory injunctions are granted less readily in

defamation precedents than in other matters and according to different
principles.”

These passages have been cited by the defendant who, like the plaintiff, is a
senior lawyer in this country. I have perused the authorities starting with
Bonnard v Perryman (1891) 2 Ch. 269 and Lord Denning’s remarks in
Hubbard v Piti (1975) 3 A11 ER1. Since our case concerns an application to
prevent by repetition a wrong that is apprehended, I consider it appropriate to
quote a passage from the judgement of Lord Coleridge, C.J., in the Bonnard
case at P. 284 where, after affirming the court’s power to grant interlocutory
injunctions as a matter of jurisdiction, he went on to say:

“but it is obvious that the subject matter of an action for defamation is so

special as to require exceptional caution in exercising the jurisdiction to
interfere by injunction before the trial of an action to prevent an anticipated
wrong. The right of free speech is one which it is for the public interest that
individuals should possess, and, indeed, that they should exercise without
impediment, so long as no wrongful act is done; and, unless an alleged libel is
untrue, there is no wrong committee; but, on the contrary, often a very
wholesome act is performed in the publications and repetition of an alleged
libel. Until it is clear that an alleged libel is untrue, it is not clear that any
 592

right at all has been infringed; and the importance of leaving free speech
unfettered is a strong reason in cases of libel for dealing most cautiously and
warily with the granting of interim injunctions”.

In the Hubbard case, Lord Denning at p.5 cited with approval the sentiments
of Lord Coleridge, C.J. about free speech and the fact that the courts will not
restrain a defendant who proposes to justify the words complained of. Para.
168 of Halbury’s Vol. 28 summarises the position as follows:

“it is well settled that no injunction will be granted if the defendant states his
intention of pleading a recognised defence, unless the plaintiff can satisfy the
court that the defence will fail. This principle applies not only to the defence
of justification but also to the defences of privilege, fair comment, consent,
and probably any other defence.”

Cases are cited in support of each of the several aspects of the statements I
have quoted and which, for the sake of brevity, I will not repeat here.

I have before me affidavits on both sides and I have carefully addressed

myself to the submissions. It was not in dispute that, subject to the special
consideration which apply to defamation cases, the usual considerations which
apply to all other application for interlocutory injunctions generally apply also
to a defamation case. Thus, for example, the plaintiff’s right to relief must
clearly be shown: see Shell And BP (Z) Ltd v Conidaris and Others (1975)
Z.R. 174 and American Cyanamid (C) v Ethicon Ltd (1975) A.C. 396
although the latter case’s applicability to defamation cases in a wholesale
manner has been doubted: see note 4 to par. 167 of Halbury’s, vol. 28. Mr

p97

Hakasenke sought to establish the plaintiff’s clear right to relief by citing para.
952 of vol. 8 of Halsbury’s Laws of England, 4th Edition, as to the effect of a
pardon which is to clear the affected person from all infamy, and from all
consequences of the offence for which it is granted, and from all statutory and
other disqualifications following upon conviction.

“it makes him, as it were, a new man, so as to enable him to maintain an

action against any person afterwards defaming him in respect or the offence
for which he was convicted”.

The further authority cited was Leyman v Latimer (1878) 3 eXD 352. It
should be noted, for the record, that the defendant did not dispute what the
legal effect of a pardon is. But he submitted that, as matter of ordinary
language, the reference complained of was factually correct. I have read the
report on the Leyman case and the judgements rendered by Bramwell, L.J.,
Brett,L.J., and cotton,L.J.
 593

The effect of a pardon and that of a spent conviction were alluded to and the
offending words in that case were references to the plaintiff as a “convicted
felon” and “felon editor”. Their Lordships in that case were discussing the
pleadings in a case which had not been fully tried on the merits and evidence.
What emerges clearly from the judgements is that the court drew a distinction
between the allegation that the plaintiff had at some previous time been
convicted of felony which words were literally true, and the reference to
“felon editor” which described the plaintiff as though still being a “felon”.
Needless to say, the defence of jurisdiction was not supported on the latter
allegation since quite clearly it is desirable that a time should come when a
person who has been convicted of felony should cease to be called a felon and
it is cruel, as Bramwell,L.J., put it, “to rake up what is past.” As I have
already stated, I do not have to anticipate what the trial court will find. suffice
it to say that there appears to be an arguable case either way and my decision
will therefore not rest on the presence or absence of a clear right to relief but
on the other principles which I have endeavoured to adumbrate in relation to
defamation cases.

In this application which is in the nature of a Quia timet application to prevent

a future wrong by repetition which the plaintiff apprehends, it is vitally
important for the plaintiff to show some evidence of the defendant’s intention
to repeat the words that would legally be objectionable and actionable. This is
particularly important if the court is to avoid making a global order which
should simply be oppressive to the defendant who has shown to my
satisfaction, by his affidavit, that he intends to plead some recognised
defences. The case of Harakas and others v Baltic Merchantile and Shipping
Exchange and another (1982) 2 A11 E.R. 701 which the defendant cited is
very much in point.

At the end of the day, having weighed the mischief sought to be restrained and
the principles and authorities; and having considered the affidavits to the
extent that they were not objectionable for being argumentative and non-
factual; and also having taken all the submissions into account, I am not
satisfied that this is an appropriate case in which I should exercise the
discretionary jurisdiction of the court to restrain the defendant by
interlocutory injunction pending trial. I have also not lost sight of the
principle that adequacy of monetary compensation is nearly always a ground
for not granting such interlocutory relief. Of course, I do not propose to dwell
on the arguments related to the plaintiff’s right to seek election to political
office nor the defendant’s right to campaign freely for or against any person.
Such arguments were, in my considered opinion, otiose and surplus to the
requirements of this application since the issue was simply whether it was
necessary and appropriate to grant an interlocutory injunction to prevent
irreparable or serious mischief. For the reasons I have given, I refuse this
application.
 594

Because the application raised important issues of general interest and because
it also provided me with the opportunity to pronounce upon the question of ex
parte applications of this nature which appeal to be routinely given even to
dilatory plaintiffs and even in doubtful situations, I consider that the costs
should be in the cause and I so order.

TOMMY MWENDALEMA v ZAMBIA RAILWAYS BOARD (1978)

Z.R. 65 (S.C.)

SUPREME COURT
BARON, D.C.J., GARDNER AND BRUCE-LYLE, JJ.S.
25TH APRIL, 17TH MAY, 1977, AND 8TH FEBRUARY, 1978
 595

(S.C.Z. JUDGMENT NO. 5 OF 1978)

Flynote

Civil procedure - Injunction - Application for interim injunction ex parte -

Necessity for full disclosure of material facts - Effect of nondisclosure -
Discharge of interim injunction obtained ex parte - Consideration thereafter
of merits - Triable issue not proper for determination in interlocutory
proceedings.
Civil procedure - Injunction - Interim injunction - Triable issue not proper for
determination in interlocutory proceedings - Balance of convenience.

Headnote

The appellant obtained ex parte an interim injunction restraining the

respondent from transferring the appellant, its employee, from Ndola to
Choma. The application for the interim injunction arose during the course of
an action by the appellant claiming, inter alia, a declaration that such
transfer was unlawful in that it infringed the appellant's rights under s. 4 of
the Industrial Relations Act, 1971. The appellant's affidavit in support of the
application made no mention of the disputed expulsion of the appellant from
the Zambia Railways Amalgamated Workers' Union, the membership of which
would be a condition precedent to the application to the appellant of s. 4 (1)
(c) of the Industrial Relations Act. The High Court held that by failing to
disclose this purported dismissal the appellant had been less than frank with
the court. The trial court then considered the merits and found that there was
no serious issue for trial. The interim injunction was thereupon discharged.

It was argued on behalf of the appellant that the failure to disclose the
purported dismissal from the union was not such a non-disclosure as justified
the discharge of the injunction. It was argued further that in any event an
interim injunction should have been granted on the merits.

Held:

(i) Although there was no actual suppression of material evidence

the question of whether or not the appellant was at the material time
a member of the union was of the utmost importance, and the fact
that there was a dispute about his membership should have been
disclosed.
(ii) Where an interim injunction obtained ex parte is discharged on
the grounds of non-disclosure of material facts (a matter which will
be reflected in the order as to costs), the court nevertheless proceeds
to consider whether or not on the merits a fresh interim injunction
should be granted.
 596

(iii) The question before the High Court was whether or not the
appellant was a member of the union at the time of his proposed
transfer, and that most important issue was a triable issue which
should not have been decided at an interlocutory hearing.

Cases cited:
(1) Boyce v Gill (1891) 64 L.T. 824.
(2) White v Kuzyych [1951] 2 All E.R. 435.
(3) American Cyanamid v Ethicon Ltd [1975] 1 All E.R. 504.

Legislation referred to:

Industrial Relations Act, 1971, s. 4.
Supreme Court Rules, (England), O. 29, r. 1.

For the appellant: L.P. Mwanawasa, Cave Malik & Co.

For the respondent: L.R. Kalumba, Legal Office, Zambia Railways.

__________________________________
Judgment

GARDNER,J.S.:

This is an appeal from an interlocutory judgment of the High Court at Ndola,

discharging a previous injunction obtained ex parte restraining the respondent
from transferring the appellant as an employee from Ndola to Choma.

The application for the interim injunction arose during the course of an action
by the appellant claiming:

(a) a declaration that his transfer in the employment of the respondent from
Ndola to Choma was unlawful in that it infringed the appellant's rights under
s. 4 of the Industrial Relations Act;
(b) damages for wrongful eviction of the appellant from his house in Ndola;
and
(c) an injunction restraining the respondent from transferring the appellant
from Ndola to Choma.

Section 4 of the Industrial Relations Act, 1971, reads as follows:

"4. (1) Notwithstanding anything to the contrary contained in any written
law, but subject to the provisions of this Act, every employee shall, as
between himself and his employer, have the following rights, that is to say:

(a) ...
(b) ...
 597

(c) where he is a member of a trade union, the right, at any appropriate

time, to take part in the activities of the trade union . . . and the right . . . to
hold office . . ."

The appellant was employed as a clerk by the respondent and was re elected
as chairman of the Ndola East branch of the Zambia Railways Amalgamated
Workers' Union on the 28th February, 1976. On the 25th April, 1976, a
meeting of the appellant's branch of the union was held and thereafter a
newspaper report was published to the effect that a strike had been threatened
at the meeting.

p67

On the 2nd March, 1976, the National Chairman of the Zambia Railways
Amalgamated Workers' Union wrote to the appellant a letter in which he said
the following.

"This action taken against you in good faith, follows my careful study I
have undertaken in your functions of Branch Chairmanship of Ndola East,
since you were elected in February, 1975.To this end therefore, I have
reluctantly decided to use my powers as National Chairman of this
Organisation and head of all Branch Chairmen, to let you know that, with
effect from 3rd March, 1976, you are expelled from Membership of this
Union, for the Press Statement you issued without permission from
appropriate authority.This expulsion is in accordance with Clause 32 of the
ZRAWU Constitution."

A copy of this letter was addressed to the respondent's general manager.

Thereafter on the 11th March, 1976, a letter was sent to the General Secretary
of the union referring to the letter from the National Chairman dated 2nd
March. This letter was signed by the appellant in his capacity as chairman of
his branch, the secretary of that branch, the chairman of a sister branch in
Ndola and the secretary of the latter branch. In it, the action of the National
Chairman to expel the appellant from membership of the union was
challenged on the grounds that it was contrary to the provisions of the
constitution of the union which provided that seven days' notice in writing of
any proposed expulsion must be given, and that the powers of expulsion were
vested solely in the National Council of the union. In particular the letter said:

"As per foregoing therefore, the action taken by the National Chairman is
unjustified hence is invalid and ultra vires. Comrade Mwendelema will
therefore continue to function as Chairman regardless of what happens, until
next election in 1977."

No reply was received to that letter.

 598

On the 17th May, 1976, the respondent's General Manager wrote to the
appellant complaining about the Press reports of the meeting. This letter
contained the following three paragraphs:

"As I said, Management has a duty to protect this national undertaking and
I will not allow anybody to disrupt the services that we provide to the
Community. Inciting workers to go on strike because of your internal
problems within the union shall not go unpunished.

I will therefore not expect any further damaging statements from you
on an issue that is little understood. This may please be heeded seriously as
any departure shall make way for administrative action to take its course.

As a precautionary measure, you have been transferred to the office of the

Assistant Superintendent Transportation Choma, where you will continue with
your substantive grade as clerk Grade 1."

p68

On the 2nd June, 1976, the appellant wrote to the Labour Commissioner in
Lusaka and purported to appeal against his expulsion from the union and on
the 31st May, 1976, the Acting Principal Labour Officer wrote to the
respondent complaining that the appellant was being victimised by the
respondent because of his internal union problems.

After the issue of the writ the appellant applied ex parte for an interim
injunction to restrain the respondent from transferring him to Choma, and in
his affidavit in support of the application he stated as a fact that he had been
re-elected as chairman of his branch of the union in February, 1976. He made
no mention whatsoever of his disputed expulsion from the union. In the
interlocutory judgment the learned judge found that, by his failure to disclose
his purported dismissal from the union, the appellant had been less than frank
with the court and went on to say:

"I was on the point of discharging the injunction for this reason alone, but
I decided to look at the merits before doing so."

The learned judge then discussed the merits and found that there was no
serious issue for trial, as a result of which he discharged the injunction.

I will deal first with the discharge of the injunction for lack of disclosure by
the appellant.

The practice in this respect is, as was referred to by the learned judge, set out
in the Supreme Court Practice 1976, O. 29, r. 1, Note 25 in which reference is
 599

made to the case of Boyce v Gill (1). In that case an interim injunction was
irregularly obtained on suppression of material facts, but the court granted an
injunction in terms of the interim order, having discharged the interim order
with costs against the plaintiff. Although, in this case, there was no actual
suppression of material evidence I cannot but agree with the learned judge that
the question of whether or not the appellant was at the material time a member
of the union was of the utmost importance, and the fact that there was a
dispute about his membership should, without doubt, have been disclosed. In
my view the learned judge quite properly discharged the interim injunction
and that view will be reflected in the order I propose. However, although it
was right to discharge the first interim injunction it does not follow that no
interim injunction should have been granted. Before the hearing of the second
application the appellant filed a further affidavit which disclosed the dispute
as to his expulsion from the union. The court was therefore then in possession
of the facts necessary for considering the application for an interim injunction
and the application was then free from the taint of non-disclosure.

The learned judge dealt with the question of whether or not there was a triable
issue relating to the appellant's membership of his union by asking himself the
question:

"Is there a real issue which needs a trial to resolve it? Perhaps it is so that
the Union did not follow the rules of fair play (the rules the court calls rules of
natural justice in a compendious and rather loose way) but can I, sitting here,
allow that rather in definite conclusion to decide, even for the present
moment, that

p69

the decision was no decision at all, - a nullity? I do not think so and again,
because an appeal has been lodged and the appellate authority, two to three
months later, has not determined the appeal, can I say the decision is not final
and effective for now? I am sure I cannot."

I agree with the learned judge that these questions have to be asked but I
respectfully disagree with his own answers. It is clear that the only issue to be
considered in this case is whether or not the appellant was a member of the
union at the time of his proposed transfer. If he was such a member then s. 4
of the Industrial Relations Act may well be contravened if he is transferred by
the respondent. This question of contravention of that section is a matter to be
decided when and if this case comes to full trial, and, again, with respect to
the learned judge, I would not go so far as to say that if the appellant had been
branch chairman his transfer to Choma would have been an infringement of
his rights under s. 4 (1) (c) of the Industrial Relations Act. If the appellant was
not a member of the union then the Industrial Relations Act would not apply
to the proposed transfer and therefore his membership of the union was of
 600

vital importance. The question before the learned judge was whether or not
the letter of expulsion by the National Chairman effectively deprived the
appellant of his rights under the Act, and the learned judge wrongly, in my
view, took it upon himself to decide this most important issue at an
interlocutory hearing. Reference was made to the case of White v Kuzyych (2)
in which the Privy Council held that where a member of a union was found
guilty by a domestic tribunal of certain offences, a conclusion was a
"decision" to the extent that under the by-laws of the union the member was
debarred from bringing an action in the High Court until he had exhausted all
the remedies available to him under the by-laws. In the first place that was a
case involving the decision of a properly constituted tribunal, whereas in this
case the essence of the appellant's complaint is that he was not expelled by a
properly constituted tribunal but, most important, in my view, this is a matter
which should not have been decided at an interlocutory hearing but was
clearly the main - indeed the only- issue to be decided when the action came
to full trial. It is not entirely clear from the affidavit what appeal was lodged to
what appellate authority as referred to by the learned judge, but whether or not
an appeal was lodged, and whether or not the appellant delayed in making
such an appeal, were not matters calling for a final decision by the learned
judge at that stage. I have no hesitation in agreeing with counsel for the
appellant that there was a triable issue which should not have been disposed of
on the application for an interim injunction.

As there was a triable issue the next matter that falls to be considered is the
balance of convenience to the parties. The law and practice in this respect are
set out in the case of American Cyanamid Co. v Ethicon Ltd (3) in which the
House of Lords set out the principles which apply to the granting of interim
injunctions. Lord Diplock set out these principles at p. 509 as follows:

p70

"My Lords, when an application for an interlocutory injunction to restrain

a defendant from doing acts alleged to be in violation of the plaintiff's legal
right is made on contested facts, the decision whether or not to grant an
interlocutory injunction has to be taken at a time when ex hypothesis the
existence of the right or the violation of it, or both, is uncertain and will
remain uncertain until final judgment is given in the action. It was to mitigate
the risk of injustice to the plaintiff during the period before that uncertainty
could be resolved that the practice arose of granting his relief by way of
interlocutory injunction; but since the middle of the 19th century this has been
made subject to his undertaking to pay damages to the defendant for any loss
sustained by reason of the injunction if it should be held at the trial that the
plaintiff had not been entitled to restrain the defendant from doing what he
was threatening to do. The object of the interlocutory injunction is to protect
the plaintiff against injury by violation of his right for which he could not be
adequately compensated in damages recoverable in the action if the
 601

uncertainty were resolved in his favour at the trial; but the plaintiff's need for
such protection must be weighed against the corresponding need of the
defendant to be protected against injury resulting from his having been
prevented from exercising his own legal rights for which he could not be
adequately compensated under the plaintiff's undertaking in damages if the
uncertainty were resolved in the defendant's favour at the trial. The court must
weigh one need against another and - determine where the balance of
convenience lies."

Although the appellant has now been dismissed from his employment and
evicted from his house, this court is not called upon to consider whether such
dismissal and eviction were lawful and we must consider for the purposes of
this appeal the situation as it was when the application for an interim
injunction was made. The arguments put forward on behalf of the respondent
were that the respondent had arranged for the transfer of another man from
Choma to Ndola and that the presence of the appellant as an agitator in Ndola
would cause more harm than could be compensated for by damages. The
appellant, on the other hand, argued that if he was moved from Ndola he
would be unable to carry out his duties as chairman of his branch of the union,
and if it were ultimately held that he was still legally the branch chairman,
nothing could compensate for his having been prevented from attending
meetings. In my view the inconvenience to the respondent of having to send
back to Choma the man who had been transferred to Ndola would be of little
weight compared to the deprivation of the appellant's opportunities to attend
union meetings. Counsel for the appellant pointed out that the respondent had
denied having alleged that the appellant was an agitator but, even if this were
not so, the respondent would have a remedy if the appellant were to do
anything unlawful, and his presence in Ndola could not be said to cause
inconvenience to the respondent which would outweigh the obvious
inconvenience to the appellant. On the balance of convenience, therefore, I
would hold that the appellant was entitled to the interim injunction.

p71

In view of the material non-disclosure by the appellant at the time of the ex

parte application for an interim injunction I would discharge that injunction
with costs to the respondent in any event. I would, however, allow the appeal
to the extent of granting a declaration that the appellant was entitled to an
interim injunction at the time of the interlocutory judgment. We are informed
that the appellant has in fact lost his employment and consequently it would
serve no purpose actually to grant such an injunction.

Judgment

BARON,D.C.J.: I agree.
 602

Judgment

BRUCE-LYLE,J.S.: I also agree.

Judgment

BARON,D.C.J.: The appeal is allowed. There will be a declaration that the

appellant was entitled to an interim injunction at the time of the interlocutory
judgment.

The appellant will pay the respondent's costs of the ex parte application for an
interim injunction and the discharge thereof; the respondent will pay the
remainder of the appellant's costs both here and in the court below.

Appeal allowed

SITIMA TEMBO v NATIONAL COUNCIL FOR SCIENTIFIC

RESEARCH (1988 - 1989) Z.R. 4 (S.C.)
 603

SUPREME COURT
GARDNER, J.S., IN CHAMBERS
29TH APRIL, 1988
(S.C.Z. JUDGMENT NO. 21 OF 1988)

Flynote

Civil Procedure - Injunction - Penal notice required before committal.

Headnote

Although the respondent was aware of an injunction it continued to demolish

the applicant's property contrary to its terms. Affidavit evidence showed that
the respondent was shown and served with a copy of the order and refused to
take notice of it. The order was not endorsed with a penal notice. The
applicant applied for committal of a representative of the respondent.

Held:

Order 45, Rule 7(4) of the Supreme Court Practice provides that it is
necessary for a written notice of an injunction to be endorsed with a penal
notice. The exceptions referred to in the Note to the rule apply only when
there has been insufficient time to prepare a written notice of injunction.
Once a written notice has been prepared it must contain a penal notice in
order to make the breach of injunction the subject of an order of committal.

Legislation referred to:

1. Rules of the Supreme Court, (Order 45 r. 7(4)

For the applicant: N. Simango, Legal Aid Counsel.

For the respondent: N. Kawanambulu, Messrs Shamwana and
Company.
_____________________________________________
Judgment

GARDNER, J.S.:
In this case the applicant applies for an order of committal of the respondent's
representative on the grounds that, being aware of an injunction continued to
demolish the applicant's property contrary to the terms of the injunction.
Affidavit evidence has been led to the effect that on the

p5

morning of the action complained of, the respondent's representative was

shown a copy of this court's order and refused to take notice of it; such refusal
 604

taking the form of instructing his work force to continue to demolish the
applicant's property. There was further affidavit evidence that a copy of the
order was served upon the respondent in the afternoon of the same day.

The order was not endorsed with a penal notice in accordance with Order 45
Rule 7(4) the Supreme Court Practice (1976) Edition (The White Book).

Mr Simango argued that the note to Order 45 Rule 7(7) indicated that it was
sufficient for the purpose of committal if the person whom it was intended to
commit had knowledge of the injunction.

Mr Kawanambulu argued that the absence of the penal notice was fatal to the
applicant's application, and that, where a person had known about an
injunction, it was still necessary for that person to be warned of the possibility
of committal if the injunction was disobeyed.

Order 45 Rule 7(4) provides that it is necessary for a written notice of an

injunction to be endorsed with a penal notice, and in my view the exceptions
referred to in Note 7 to the Rule apply only when there has been insufficient
time to prepare a written notice of injunction. Once a written notice has been
prepared it must contain a penal notice in accordance with Rule 7(4) in order
to make a breach of the injunction the subject of an order of committal. To
hold otherwise would be to render the provision requiring a penal notice
valueless, in that all injunctions by their very nature are matters of urgency,
and parties wishing to enforce injunctions would in all cases be able to avoid
the necessity for a penal notice by relying on verbal notice.

As the applicant in this case did in fact have time to draw a written order, and,
as such order did not contain a penal notice as required, the application for an
order of committal is refused.

Application refused.

THE REPUBLIC OF BOTSWANA, MINISTRY OF WORKS

TRANSPORT AND COMMUNICATIONS, RINCEAU DESIGN
 605

CONSULTANTS (sued as a firm previously T/A KZ ARCHITECTS) v

MITRE LIMITED (1995) S.J.

SUPREME COURT
SAKALA, CHIRWA AND MUZYAMBER, JJ.S.
15TH OCTOBER 1995 AND 20TH NOVEMBER 1995
S.C.Z. JUDGMENT NO. 20 OF 1995
S.C.Z. APPEAL NO. 53 OF 1995

Flynote

Contract - Reference of dispute to arbitration - Continuation of injunction

after arbitration award

Headnote

The first appellant and the respondent entered into a building contract for the
construction of buildings to specifications on plot 2647 Haile Selassie Road
Lusaka. Such construction work was to be supervised by the second
appellant. Clause 35 of the Contract provided for reference of any dispute or
disputes between the parties to arbitration. In the course of construction
work a dispute arose between the parties which made it necessary to refer the
dispute to arbitration in terms of Clause 35 of the Contract. Prior to the
appointment of the arbitrrator, t he respondent had obatined an interim
injunction against the appellants. The matter then went to arbitration and an
award made on 31st March 1995. Subsequent to the arbitrator’s award the
respondent filed an application to set aside the award and upon amending the
originating notice of motion obtained an extension of time within which to
apply to set aside the award.

Held:

(i) The court ought not to have entertained the respondent's

application let alone order continuation the exparte order.

Cases referred to:

1. Order 2, R.S.C 1995 Volume 1
2. Leopold Walford (Z) Ltd v Unifreight 1985 Z.R. 203

For the Appellants: A M Wood, D H Kemp & Company

For the Respondents: N Kawanambulu, Nosiku Kawanambulu & Co.
_________________________________________
Judgement

MUZYAMBA,J.S.: delivered the judgment of the court.

 606

This is a consolidated appeal against two separate orders of the High Court
granting the respondent an injunction and extension of time within which to
apply to set aside an arbitration award.

The first appellant is the sovereign Republic of Botswana and the second
appellant is an Architectural and/or Consultancy firm in Zambia and also an
agent of the first appellant. The respondent is a limited liability company
incorporated in Zambia. The first appellant and the respondent entered into a
building contract for the construction of buildings to specifications on plot
2647 Haile Selassie Road Lusaka. Such construction work was to be
supervised by the second appellant. Clause 35 of the Contract provided for
reference of any dispute or disputes between the parties to arbitration. In the
course of construction work a dispute arose between the parties regarding
payments of moneys reflected on the second appellant’s payment certificates
numbers 12 and 13 and also whether or not certain amounts were deductable
from these moneys as liquidated and ascertained damages for delays in
construction work on the part of the respondent. It then became necessary to
refer the dispute to arbitration in terms of Clause 35 of the Contract. At the
request of the respondent the Architects and Quantity Surveyors Registration
Board then appointed Mr Chris Westlake of J.W. Robertson - quantity
Surveyors of Ndola as arbitrator.

The respondent accepted the appointment. As for the appellants, we do not

find any evidence on record that they objected to the appointment of Mr West
lake as an arbitrator. In any event they submitted to arbitration. I would
appeal from the affidavit in support of the application for an interim injunction
that on 28th October, 1994 the first appellant terminated the contract and on
2nd November 1994 forceably moved onto the site. By then the arbitrator had
not been appointed. This prompted the respondent to issue a writ of summons
against the appellants claiming, inter alia, for an injunction in the following
terms:

“Secondly for an order of injunction to restrain both Defendants, their

servants or agents from occupying, trespassing, passing, repassing and
interfering in whatever manner with the Plaintiff’s possession of the
construction site, building materials thereon and the premises still under
construction on Plot 2647 Haile Selassie Avenue Lusaka pending the final
determination by the arbitrator of all disputes between the parties arising
under the said building contract.”

On 27th December 1994 the respondent obtained an exparte order of interim

injunction. the matter then went to arbitration and am award made on 31st
March 1995. Subsequent to the arbitrator’s award the respondent filed an
application to set aside the award and upon amending the originating notice of
motion obtained an extension of time within which to apply to set aside the
award. Briefly, that is the history of the matter.
 607

We will first deal with the portion of the appeal relating to the injunction. The
memorandum of appeal lists 5 grounds and several authorities were cited in
support of arguments on each side. One such ground reads:

“That the learned trial Judge ought to have found that the purpose for
which the injunction had been obtained had been overtaken by events because
an arbitration award had been made in favour of the appellants”.

The success or otherwise of this part of the appeal depends upon this ground.
In the writ, the respondent sought for an injunction in the terms already set out
above pending final determination of the dispute by the arbitrator. The
respondent obtained an exparte order on 27th December, 1994. The order set
2nd February 1995 for inter parte hearing. It is not clear what happened on
that day but on 31st May 1995 the court heard both parties. Before then, on
20th April 1995 the arbitrator’s award was still filed in court and at the
hearing of the inter party application Mr Kawanambulu informed the court
that he had filed a separate application to set aside the award. The record
shows that that application was filed on that same day of the interparty
hearing. The court reserved its ruling and on 16th July, 1995 ordered the
interim injunction to subsist.

Mr Kawanambulu argued that the learned trial Judge was in order to grant the
interlocutory injunction and that the injunction should continue until the
award is set aside. That if the injunction is discharged the respondent would
suffer irreparable damages that cannot be atoned for by damages.

We have considered the ground of appeal and the submission by Mr

Kawanambulu. It common cause that the interlocutory injunction was granted
long after the arbitrator’s award. An interim or interlocutory injunction is by
its nature and name a temporary order granted pending the determination of a
matter or an issue and terminates upon such determination. In this case the
respondent obtained an interim injunction pending arbitration proceedings.
The proceedings concluded and an award made before the interparty hearing
for an interlocutory injunction. That being the case the court ought not to
have entertained the application let alone order continuation the exparte order.
For this reason alone we would allow this part of the appeal and dissolve the
injunction.

We will not deal with that part of the appeal relating to extension of time.
Order 45 rule 13 of the High Court rules, Cap 50 provides as follows:

“No award shall be liable to be set aside except on the ground of

perverseness or misconduct of the arbitrator or umpire. Any application to set
aside the award shall be made within fifteen days after the publication
thereon.”
 608

It is argued by Mr Wood that this rule does not give the court a discretion to
extend the time within which to bring an application to set aside an award.
That the learned trial judge was therefore wrong to extend the time in this
matter. On the other hand Mr Kawanambulu argued that this rule was not
mandatory but directory or regulatory and therefore that the court had
jurisdiction or discretion to extend the time. He referred the court to Order II
Rule 2 of the High Court Rules Cap 50 which provides as follows:

“Parties may, by consent, enlarge or abridge any of the times fixed for
taking any step, or filing any document, or giving any notice, in any suit.
Where such consent cannot be obtained, either party may apply to the court or
a judge for an order to effect the object sought to have been obtained with the
consent of the other party, and such order may be made although the
application for the order is not made until after the expiration of the time
allowed or appointed.”

We have considered both arguments on this issue. The key words in the rule
are ‘in any suit.’ These words mean pending action or litigation. We are
therefore satisfied that this rule applies only to actions that are already
pending in court and not to bringing or contemplated actions.

As regards whether or not the rule is mandatory or directory and therefore

discretionary we wish to refer to Order 2 rule 1 (1) of the white book, 1995
edition, volume 1 and to our decision in Leopold Walford case (2) cited by Mr
Kawanambulu.

0.2 r 1(1) provides as follows

“Where, in beginning or purporting to begin any proceedings or at any

stage in the course of or in connection with any proceedings, there has, by
reason of any thing done or left undone, been a failure to comply with the
requirements of these rules, whether in respect of time, place, manner, form or
content or in any other respect the failure shall be treated as an irregularity and
shall not nullify the proceedings any step taken in the proceedings or any
document, judgement or order herein.”

And in Leopold Walford case (2) at page 205 we said:

“As a general rule, breach of a regulatory rule is curable and not fatal.”

The high Court rules, like the English rules, are rules of procedure and
therefore regulatory and any breach of these rules should be treated as mere,
irregularity which is curable. Rule 13 of Order 45 is therefore directory or
regulatory and not mandatory. the court has therefore a discretion or power,
 609

on sufficient reasons shown, to enlarge the time within which to bring an

application to set aside an award.

Was sufficient reason for the delay shown in this case? We have examined
the affidavit evidence and the attached exhibits. Paragraphs 4-8 of the
affidavit in support of the application for an extension of time read as follows:

“4. That although the award by the arbitrator was signed on the
31st March 1995 it was not made available to me until early in April after I
had paid the arbitrator’s fees.

5.That following the award I instructed my Advocates to request the

Arbitrator to state a special case for the opinion of the Court but the Arbitrator
declined to do so. The documents now produced and shown to be marked
“RPH1-3” are copies of the letters from my advocates and the Arbitrator dated
24th April, and 8th May 1995 respectively.

6.That on receipt of the Arbitrator’s reply I then instructed my advocates

to make this application on the 31st May 1995.

7.That the delay in making this application arose from the fact that I did
not expect the Arbitrator to refuse to state a special case for the opinion of the
court so that by the time I made the application to this court I was already out
of time and that the said delay was not deliberate.

8.That also the amount of work involved as is evidenced by the bulky

nature of the affidavit was such that my advocates were not able to lodge the
application within a period of twenty one days after the publication of the
award.”

It is quite clear from paragraph 4 of the affidavit that the respondent became
aware of the award early in April 1995. The respondent’s first reaction to the
award was on 24th April 1995 after the award was filed in court on 20th April
1995. Then the respondent was already out of time. At that stage, instead of
applying for an extension of time the respondent entered into some
correspondence with the arbitrator.

On 2nd May 1995 the arbitrator wrote to the respondent’s advocates saying
that he would not state a special case for the opinion of the court. Whether or
not an arbitrator can state a case for the opinion of the court after an award is
not an issue before us. Again, at that stage instead of applying for an
extension of time the respondent wrote another letter to the arbitrator insisting
that he should state a special case o the court. The arbitrator replied on 8th
May, 1995 maintaining his position. Again the respondent did not apply for
an extension. then on 31st May 1995 the respondent filed an application to set
aside the award without first obtaining an extension. The application was
 610

listed for hearing on 20th July 1995. Before then, 0n 11th July 1995 the
appellants filed a notice of intention to raise preliminary issues at the hearing.
One such issue was whether the application should be heard having been filed
out of time. It was then that the respondent filed an amended originating
notice of motion on 13th August 1995 to include a prayer for an extension of
time within which to apply to set aside the award.

From the foregoing, there can be no doubt that the respondent adopted
completely wrong approach. This was perhaps due to the fact, as can be seen
from the steps taken in the matter, that it was not aware of the provisions of
Order 45 rule 13. In law that not an excuse. We therefore not satisfied that
sufficient reasons were given for the delay. We would, for this reason also
allow this part of the appeal. We set aside the order granting extension of
time.

The net result is that the whole appeal succeeds with costs to the appellants to
be taxed in default of agreement.

Appeal allowed.
 611

CHINA HENAN INTERNATIONAL ECONOMIC TECHNICAL

COOPERATION v MWANGE CONTRACTORS LIMITED

Supreme Court
Lewanika, D.C.J., Sakala, J.S. and Mambilima,
25th February, 2000 and 24th January, 2002
(SCZ Judgment No. 7 of 2002)

Flynote

Civil Procedure – Commercial Court – Judgment on admission – Whether

commercial court entitled to enter judgment on admission in appropriate
cases

Civil procedure – Commercial Court – Pleadings – Content of.

Headnote

This is an appeal against the ruling of the court given on 3rd October, in
which the court entered Judgment on Admission at a scheduling conference
on the grounds that the defence which was filed by the appellant did not
rebut in full the allegations contained in the statement of claim. The
appellant appealed against the decision of the learned trial Judge.

Held:

(i) The new dispensation in commercial matters require parties to

plead their cases with precision and in detail early in the litigation in
order to assist the courts in narrowing and defining the issues in
contention.

(ii) Judgment on admission can in appropriate cases, be entered at

the scheduling conference because this is the time when the court
considers, the pleadings and directions the matter should take.

(iv)Case flow management techniques require that the court should be in

control of the pace of litigation and properly direct the course of events.

Legislation referred to:

1. High Court Act Cap. 27 Order 42 r. 6 and 53.

Works Referred to

1. Supreme Court Rules (White book) Order 27 r. 3.

2. Practice Directions governing Commercial Matters r. 2.
 612

M. Malila of Phoenix Partners for the appellant.

D. Locha of D.H. Kemp and Company for the respondent.
A.M. Kasonde of M. Kasonde and Company for the respondent.

Judgment

MAMBILIMA A.J.S., delivered the judgment of the Court:

On 24th January, 2000, we heard this appeal and allowed it with costs to the
respondent. We said we would give our reasons later, and this we now do.

This is an appeal against the ruling of the Court below given on 3rd October,
2001, in which the Court entered Judgment on Admission at a scheduling
conference on the ground that the defence which was filed by the appellant
did not rebut in full allegations contained in the Statement of Claim. The
appellant has advanced six grounds of appeal namely:

‘1. The Court below misdirected itself in not considering a Judgment given or
obtained in the absence of the other party as equivalent to a default Judgment
and therefore liable to be set aside, or alternatively that such Judgment is
liable to be set aside in its own right.

‘2. The learned Judge in the Court below did not act judiciously when he
failed to consider that a Scheduling Conference afforded the defendant’s
Counsel opportunity to make an application including an indication to amend
the defence and therefore that it is improper to enter Judgment on admission
in the absence of such party.

‘3. That the Court below acted contrary to established practice in proceeding
in the absence of Counsel for the defendant without in the first place
satisfying himself that there was proper service of the Notice of Hearing on
the defendant or its Counsel.

‘4. The Court below misdirected itself in law when it considered the general
traverse contained in paragraph 3 of the defendant’s defence as an admission
of the plaintiff’s claim.

‘5. The Court below misdirected itself in proceeding with the Scheduling
Conference in view of the plaintiff Counsel’s expressed reluctance to proceed
in the absence of the defence.

‘6. The Court below misapprehended the provisions of the law and the
relevant Practice Direction when it held that Judgment on admission need not
be applied for by the plaintiff. He further erred on a point of fact when he
held that in this particular for Judgment.
 613

At the hearing of the appeal, it was evident that the main grievance by the
appellant was that the Judgment on Admission was entered at the Scheduling
Conference in the absence of its Counsel and that had Counsel been present,
he could have had an opportunity to apply to amend the defence for it to
comply with the Practice Directions which govern commercial matters. Mr.
Kasonde, for the respondent conceded that had the learned Counsel for the
appellant been present at the Scheduling Conference, he would have had an
opportunity to amend the defence. He argued however that whether such an
amendment if made could have introduced a viable defence on merits, is
another issue.Rule 2 of the Practice Directions which govern commercial
matters states:

“The defence shall specifically traverse allegation of fact made in the

statement of claim or counter-claim as the case may be. A general or bare
denial of such allegation or a general statement of non-admission of them
shall not be a traverse thereof. A defence that fails to meet requirements of
this direction shall be deemed to have admitted the allegations not traversed
and in an appropriate case the plaintiff may be entitled to enter Judgment on
Admission.”

The statement of claim which was filed by the respondent is very detailed. It
explains the facts on which the plaintiff relies and claims damages for breach
of contract. The defence filed by the appellant contains three paragraphs:
‘1. The defendant admits paragraphs 1 and 2.

‘2. The contents of paragraphs 3,4,5,6,7,8,9 and 10 are denied and the
defendant shall put the plaintiff to strict proof thereof.

‘3. SAVE as hereinafter expressly admitted the defendant denies each and
every allegation contained in the statement of claim as though seriatim”

This defence clearly falls far short of the standard required in commercial
cases as provided by Practice Direction 2. It does not traverse specific
allegations of fact contained in the Statement of claim. It is a general
statement of non admission, containing bare denials. The new dispensation in
commercial matters is that Parties must place their cards on the table early in
the litigation to assist in narrowing issues of contention and for the real issues
in the dispute to surface. It is not prudent for a party to wait for trial before
exposing their side of the story. At the Scheduling Conference, the nature of
directions given to chart the course of events in the case depends in the main,
on the issues raised in the pleadings before the Court. At that stage, these
pleadings are contained in the statement of claim and defence. When issues
are well defined in the statement of claim and the defence, the Court is in a
position to properly direct the parties or indeed decide whether or refer the
matter to Mediation or Arbitration. In keeping with the Practice Directions,
 614

where a defence in a commercial matter does not satisfy the requirements of

rule 2, the court is entitled to enter Judgment on Admission in an appropriate
case.

Mr. Malila argues further that the Court can only enter Judgment on
Admission upon application by either motion or summons. For this
proposition, he referred us to order 27 of rule 3 of the Supreme Court Rules
and Order 21 Rule 6 of the High Court Act.

Order 27 Rule 3 of the Rules of the Supreme Court (White Book) provides:-
“Where admission of fact or of part of a case are made by a party to a cause or
matter either by his pleading or otherwise any other party may apply to the
Court for such judgment or order as upon those admissions he may be entitled
to, without waiting for the determination of any other question between the
parties and the Court may give such Judgment or make such Order, on the
application as it thinks just.
An application for an Order under this rule may be made by Motion or
Summons”.
Order 21 Rule 6 of the High Court Rules states that:

“a Party may apply on Motion or Summons, for Judgment on admission

where admissions of fact or part of a case are made by a Party to the cause or
matter whether by his pleadings or otherwise.”

In the context of commercial matters, however, Order 53 of the High Court

Act provides for a Scheduling Conference to be held after filing of a
Memorandum of Appearance and a defence. If a defence fails to meet the
requirements of Practice Direction 2, “the plaintiff may be entitled to enter
Judgment on Admission”. This, in our view, does not entail a party going
back to take out summons or a motion to enter Judgment on Admission. The
Judgment can be entered at the Scheduling Conference because this is the time
when the Court is considering the pleadings; what directions to give and
decide whether the matter should proceed further. The case flow management
techniques at play requires the Court to be in control of the pace of litigation
and properly direct the course of events. It would be absurd to expect a Court
which is in control, to pause and wait for an application where clearly the
defence is deemed to have admitted the claim. This is without prejudice to
Order 27 Rule 3 of the Rules of the Supreme Court and Order 21 Rule 6 of the
High Court Act where a plaintiff “may” apply by Motion or Summons to enter
Judgment on admission.

We allowed this appeal for the reason that the Judgment on Admission in this
case was entered in the absence of Counsel and the reason given for the
absence of Counsel at the Scheduling conference was that the Counsel was not
aware of the return date of the Scheduling Conference since she was not
 615

served with the notice for the Scheduling Conference. The record shows that
there was no affidavit of service filed by the plaintiff to counteract this
position. The Court below ought to have been satisfied with the service of the
Notice of Scheduling Conference before entering judgment on Admission. It
is our view that had the defendant’s Counsel been present at the Scheduling
Conference, he would have an opportunity to make an appropriate application
to amend the defence. To this effect, procedural justice was compromised.
For these reasons, we allowed the appeal and referred the matter back to the
Court below to proceed with the Scheduling Conference.

Appeal allowed.
 616

SATA v POST NEWSPAPERS Ltd and ANOTHER

HIGH COURT
NGULUBE, C.J.
13TH FEBRUARY, 1995

Flynote

(1) Constitutional law – Fundamental rights – Freedom of the press –

Right to reputation – Defamation – Fair comment – Public interest
– Impersonal attack on governmental operations – Whether
defamation of official responsible – Whether injury to official
reputation – Extent of press freedom to express criticism –
Whether current law of defamation requiring modification –
Defamation at, s 7 – Constitutional of the Republic of Zambia 191,
art 20.

(2) Tort – Defamation – ‘Rolled-up plea’ – Fair comment –

Allegations patently injurious to personal, private and official,
political character – Whether allegations based on inferences of
fact – Whether inferences legitimately drawn from other facts
stated orindicated in publication complained of – Whether
protected as fair comment on matters of public interest.

(3) Tort – Defamation – Fair comment – Factual allegations proved

in part or notorious in public domain – Some allegations unproved
– Whether defence of fair comment available-Defamation Act, s 7.

(4) Remedies – Defamation – Injunction – Whether exemplary or

punitive damages appropriate – Primary object of award –
Whether perpetual injunction appropriate -Freedom of the press.

Headnote

The plaintiff, who was at all material times a politician and public official
holding a ministerial appointment, brought three actions for libel against the
defendant, contending that they had defamed him in their newspaper
publications. In May 1992 the defendants published an editorial article in
their newspaper stating that the plaintiff was a political survivor, and that in
the second Republic ‘he survived vetting on several occasions’. The article
stated that in 1990 the plaintiff’s ‘political prostitution’ prompted the former
president’s decision to fire him. The article listed the plaintiff’s ‘thoughtless’
actions, including the razing of houses, his alleged order to fire striking
 617

workers, the alleged awarding of contracts to associate, riotous behaviour

where some mourners from the ruling party were stoned at a funeral and
outrageous or intolerant behaviour on television. The article referred to the
Anti-Corruption Commission’s investigations against the plaintiff and it
concluded ‘there is nothing “honourable” about this clearly dishonourable
man’. The plaintiff issued proceedings in the first action against the defendant
for the remarks published which he claimed were defamatory. The plaintiff’s
allegedly thoughtless actions had been reported in various other newspapers
with a national circulation and on the electronic media. The plaintiff in a
television programme took up the official defence of the razing of houses and
criticised the media in general and the first defendants by name for their
shortcomings when reporting on issues.

In the second action, which was consolidated with the first, the plaintiff
complained about the main story on the front page of the defendant’s
newspaper in July 1992, which reported that the plaintiff was beaten up by
another minister in the National Assembly motel bar room when the plaintiff
provoked others by his belligerence and abusive language. The plaintiff
pleaded in his statement of claim that it was defamatory

(i) to impute that he was physically incapable of defending himself

and

(ii) to assert that he could not even lose his good reputation, since he had
none and that he was ‘not only unruly, but…also greedy’ as alleged in
the accompanying editorial.

In the third action the plaintiff complained of two articles together with a
cartoon which appeared in January 1993 in the defendants’ newspaper. The
first article concerned the plaintiff’s diversion for his own benefit of a
government grant of K1.6bn to local authorities which was meant for, inter
alia, salary increases and arrears. A summary of a report on the matter was
subsequently distributed at a State House press conference. In the second
article the first defendant urged the president to remove the plaintiff from his
ministerial office and, relying on previous publications, stated that the
plaintiff was petty and unscrupulous. The cartoon depicted a large snake
with a human head pinned down by a prong on which was inscribed ‘1.6
billion’. The plaintiff’s nickname was ‘King Cobra’. The statement of claim
included a prayer for a perpetual injunction to restrain the defendants from
repeating the alleged libels. The defendants did not dispute having published
in their newspaper the articles and cartoon relating to the plaintiff which the
plaintiff alleged were libellous. They asserted in a rolled-up plea that those
allegations consisting of comments were fair comments on matters of public
interest. Article 20(2) of the Constitution of the Republic of Zambia 1991
provided that subject to the Constitution’s provisions no law should make any
provision that derogated from the freedom of the press. The defendants
 618

submitted that s7 of the Defamation Act permitted a reasonable margin of

misstatement of facts on the defence of fair comment. The defendant
contended that the common law principles of the law of defamation in their
application to plaintiffs who were public officials as to their right of action
should be modified in relation to the burden and standard of proof and the
latitude that the press should be permitted in order to subject public officials
to criticism and scrutiny.

HELD: Judgement for the plaintiff in part.

(1) In order to give effect to art 20 of the Constitution, which

guaranteed the freedom of the press, the law of defamation as
currently applied was to be interpreted as precluding impersonal
attacks on governmental operations from being treated as libels
of an official responsible for those operations. It was of the
highest public importance that a democratically elected
governmental body should be open to uninhibited public
criticism, and since the threat of civil actions for defamation
induced the chilling effect or tendency to inhibit free discussion
and placed an undesirable fetter on the freedom to express such
criticism, it would be contrary to the public interest for
governmental institutions to have any right at common law to
maintain an action for damages for defamation. Since those in
public positions were taken to have offered themselves to public
attack, impersonal criticism of public conduct leading to injury
to official reputation should not attract liability provided that
criticism contained no actual malice and even if, pursuant to s 7
of the Defamation Act, the truth of all facts alleged was not
established, the imputation complained of was competent on the
remainder of the facts which were proved. Where an allegation
of libel could properly be regarded as comment on the conduct of
a public official in the performance of his official duties or on
conduct reflecting upon his fitness and suitability to hold office,
freedom of speech and the press could best be served by the
courts’ insisting upon greater tolerance than in the case of a
private attack before an obvious comment based on substantially
true facts could be regarded as unfair. A balance had to be
struck between freedom of the press and the right to reputation
guaranteed by art 20, which was not possible by shifting the
burden or standard of proof (see pp 73, post). New York Times
Co v Sullivan (1964) 376 US 254 and Theophanous v Herald and
Weekly Times Ltd [1994] 3 LRC 369 adopted.

(2) On established principles an allegation could be comment if it

was an inference of fact which could legitimately be drawn from
other facts stated or indicated in the publication complained of
 619

but where a bold allegation could not be distilled from other facts
started or indicated, it could not even be called a comment. It
followed that to call a politician and a minister a political
prostitute was clearly defamatory. The plaintiff in the first
action could not be called a political prostitute for joining a party
of his own choice after the reintroduction of a new political
dispensation allowing for the formation of other parties. The
allegation was patently injurious to the plaintiff in his private
and personal character and in his political and official
character. In the second action the evidence given to support the
allegation of greed did not reveal any personal benefit on the
part of the plaintiff and constituted a personal attack upon him.
Greed was a personal characteristic and could not have been a
criticism of the plaintiff in any official capacity. Moreover, a
fair-minded person could not reasonably infer greed from such
facts and the opinion cold not represent the honest opinion of the
writer. In the third action the allegations of corruption in the
editorial wee not justifiable or warranted by the facts available
and were indefensible as fair comment since there was little if
any comment. It followed that the editorial amounted to a
flagrant attack on the very core of the personal character and the
private and public reputation of the plaintiff. Judgment would
accordingly be entered for the plaintiff with regard to those
allegations (see pp 76, 77, 78-79, 81-82, 83, 84, post). Kemsley v
Foot [1952] 1 All ER 501 considered.

(3) Fair comment could not avail the defendant where the allegation
made could not fairly and reasonably be inferred from the facts.
Although on a consideration of the evidence the plaintiff in the
first action was vetted on one occasion only, the error in the
number of occasions could not be regarded as defamatory. Since
the public and general readership of newspapers in the country
had been conditioned by previous publications to attach official
blame to the plaintiff with regard to his allegedly thoughtless
actions, there was a sufficient substratum of fact on which to
base the comments made on the razing of houses. In the second
action in the context of the article as a whole it was clear that the
allegation in the editorial, that the plaintiff had no reputation,
was made as an inference of fact. Moreover, since bar-room
brawls were dishonourable and those who participated were
rightly said to be unruly, it followed that it was not defamatory to
report that some one had been beaten, especially by a much
bigger opponent. In the third action on the evidence the
information concerning the diversion of the large sum of money
was substantially the truth. The cartoon was a satirical comment
to the effect that the plaintiff had been caught in some
 620

wrongdoing regarding the money referred to and could not be

construed in isolation. The nature of the wrongdoing was fully
discussed in the articles and it would be strange for any
reasonable reader to ignore the articles and to read meanings
into the cartoon independently of those articles. The inferences
and comments on the true representation of the facts in the third
action were neither defamatory nor actionable and it followed
that the defence of fair comment applied to the otherwise
defamatory caricature. Even though there was insufficient
evidence to establish the truth of all of the allegations made by
the defendants, the imputations, except those relating to the
personal character assassination, the political prostitution and
greed of the plaintiff, were competent on the facts which were
proved or notorious in the public domain and it followed that, in
relation to those imputations, the defence of fair comment was
available pursuant to s 7 of the Defamation Act (see pp 78, 79-
80, 81, 82, 83-84, post).

(4) Where there was little actual loss suffered by a plaintiff

exemplary or punitive damages were not appropriate, since the
primary object of an award for defamation was to offer
vindication and solatium rather than monetary compensation.
On a consideration of all the circumstances, K500,000 would be
awarded by way of solatium to the plaintiff in respect of the
consolidated actions and an award of the same amount in respect
of the third action. As the plaintiff was a political figure, a
perpetual injunction would inhibit free debate on current and
future, political matters and accordingly would not be granted to
restrain the defendants from publishing their opinions (see pp
84-85, post). (Editor’s note: Article 20 of the Constitution of the
Republic of Zambia 1991 is set out at p 66, post.]

Cases referred to in judgment

(1) Afro-American Publishing co v Jaffe (1966) 125 US App Dc 70, 366 F 2d

649, US S.C.
(2) Barr v Matteo (1959) 360 US 564, 3 L Ed 2d 1434, US SC
(3) Buckley v New York Post Corp (1967) 372 F 2d 175, 2d Cir
(3) Cobbett-Tribe v Zambia Publishing Co Ltd [1973] ZR 9
(4) Curtis Publishing Co v Butts; Associated Press v Walker (1967) 388 US
130, (1967) 18 L Ed 2d 1094, US SC
(5) Chicago (City) v Tribune Co (1923) 307 111 595, 139 NE 86, US SC
(6) De jonge v Oregon (1937) 299 US 353, 81 L Ed 278, US SC
(7) Derbyshire CC v Times Newspapers Ltd [1993] 2 LRC 617, [1993] 1 All
ER 1011, [1993] AC 534, [1993] 2 WLR 449, UK HL
 621

(8) Hunt v Star Newspaper Co Ltd [1908]2 KB 309, [1908-10] All ER Rep
513, UK C.A.
(9) Kapwepwe v Zambia Publishing Co Ltd [1978] ZR 15 (S.C.)
(10) Kemsley v Foot [1952] 1 All ER 501, [1952] A.C. 345, UK HL
(11) New York Times Co v Sullivan (1964) 376 US 254, 11 L Ed 2d
686, US S.C.
(12) Theophanous v Herald and Weekly Times Ltd [1994] 3 LRC 369,
(1994) 124 ALR 1, Aus H.C.
(13) Time, Inc, v Hill (1967) 385 US 374, 17 L Ed 2d 456, US S.C.
(14) Whitney v California(1927) 274 US 357, 71 L Ed 1095, US S.C.

Legislation referred to in judgment

Zambia

1. Constitution of the Republic of Zambia 1991, art 20

2. Corrupt Practices Act
3. Defamation Act (Cap 70), ss 6, 7, 9, 10

United Kingdom

Fatal Accidents Act 1846; Libel Act 1843 (Lord Campbell’s Acts)

United States
Constitution (1787), First and Fourteenth Amendments

Other sources referred to in judgment

African Charter on Human and Peoples’ Rights, art 9

Convention for the Protection of Human Rights and Fundamental Freedoms
(Rome, 4 November 1950; TS 71 (1953); Cmd 8969), art 10
Douglas The Right of the People (1958) p 41
Gatley on Libel and Slander (8th edn, 1981) paras 695, 696, 884
International Covenant on Civil and Political Rights (New York, 16 December
1966; TS 6 (1977); Cmnd 6702), art 19

Actions
Michael Chilufya Sata, the plaintiff, brought three actions for libel against
Post Newspapers Ltd and Printpak Zambia Ltd, the defendants, which he
contended published defamatory articles in their newspapers, The Post and
formerly The Weekly Post, in the editions (i) dated 22 to 28 May 1992, (ii)
dated 8 to 14 January 1993 and (iii) dated 31 July to 6 August 1992. The first
two actions were consolidated and upon application the court ordered that the
third action be tried with the consolidated actions. The defendants pleaded
fair comment to all the allegations. The facts are set out in the judgment of
Ngulube,C.J.
 622

For the plaintiff: Mundia F. Sikatana

For the first defendant: S. Sikota and S Nkonde
For the second defendant: E. Lungu
____________________________________
Judgment

NGULUBE, C.J.: delivered the judgment of the Court

There are three actions for libel in this case to which the defendants have
pleaded fair comment. Their rolled-up plea assets that those allegations
consisting of fact are true and those consisting of comments are fair comments
on matter of public interest. In respect of some of the matters complained of
there is a denial that they could bear the defamatory imputations assigned to
them by the plaintiff in his pleadings. The plaintiff was at all material times a
politician and public official holding a ministerial appointment and it was not
in dispute that the defendants published in their newspaper ‘The Post’ (and
formerly ‘The Weekly Post’) the various articles and a cartoon complained of.
The two actions commenced in 1992 were consolidated, while I had in the
early stages of the trial allowed an application that the 1993 action be tried
together with the consolidated action.

Before analysing the issues raised in the pleadings and the evidence it is
necessary to give precedence to a proposition put forward by Mr Sikota and
Mr Lungu which was to the following effect as I summarise it. Because art 20
of the Constitution of the Republic of Zambia 1991 specifically recognises,
among others, the principle of the freedom of the press, it is now time to
modify the common law principles of the law of defamation in their
application to plaintiffs who are public officials as to their right of action, the
burden and standard of proof, and the latitude the press should be permitted
to subject public officials to criticism and scrutiny. It was argued that because
of the similarity between the provision in our Constitution and that of the
USA, we should choose to follow the line taken by the American courts rather
than the one followed by the courts in England. In this regard, it was
submitted that I should apply the landmark case of New York Times Co v
Sullivan (1964) 376 US 254, 11 L Ed 2d 686 in which the Supreme Court of
the United States laid down some principles grounded in the First and
Fourteenth Amendments to fetter libel actions by public officials to the benefit
of free speech and press freedom. Our art 20 reads:

‘(1) Except with his own consent, no person shall be hindered in the
enjoyment of his freedom of expression, that is to say, freedom to hold
opinions without interference, freedom to impart and communicate ideas and
information without interference, whether the communication be to the public
generally or to any person or class of persons, and freedom form interference
with his correspondence.
 623

(2) Subject to the provisions of this Constitution no law shall make any
provision that derogates from freedom of the press.

(3) Nothing contained in or done under the authority of any law shall
be held to be inconsistent with or in contravention of this Article to the extent
that it is shown that the law in question make provision-(a) that is reasonably
required in the interest of defence, public safety, public order, public morality
or public health; or (b) that it is reasonably required for the purpose of
protecting the reputations rights and freedoms of other persons or the private
lives of persons concerned in legal proceedings, preventing the disclosure of
information received in confidence, maintaining the authority and
independence of the courts regulating educational institutions in the interest of
persons receiving instruction therein, or the registration of, or regulating for
technical administration or the technical operations of, newspapers and other
publications, telephony, telegraphy, posts, wireless broadcasting or television,
or (c) that imposes restrictions upon public officers; and except so far as that
provision or, the thing done under the authority thereof as the case may be, is
shown not to be reasonably justifiable in a democratic society.’

The First Amendment to the United States Constitution reads, omitting the
irrelevant: ‘Congress shall make no law… abridging the freedom of speech, or
of the press.’ The Fourteenth Amendment reads: ‘No state shall make or
enforce any law which shall abridge the privileges or immunities of citizens of
the United States.’ It should be noted that there are international human rights
instruments with similar provisions. For instance, an English court would
take heed of art 10 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (Rome, 4 November 1950; TS 71 (1953); Cmd 8969)
(the European Convention) which reads:

‘1. Everyone has the right to freedom of expression. This right shall
include freedom to hold opinions and to receive and impart information and
ideas without interference by public authority and regardless of frontiers. This
Article shall not prevent states from requiring the licensing of broadcasting,
television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and

responsibilities, may be subject to such formalities, conditions, restrictions or
penalties as are prescribed by law and are necessary in a democratic society in
the interests of national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of the reputation or rights of
others, for preventing the disclosure of information received in confidence, or
for maintaining the authority and impartiality of the judiciary.’

Then there is the United Nations International Covenant on Civil and Political
Rights, art 19 of which is couched in even more sweeping terms:
 624

‘(1) Everyone shall have the right to hold opinions without

interference.
(2) Everyone shall have the right to freedom of expression; this right shall
include freedom to seek, receive and impart information and ideas of all kinds,
regardless of frontiers, either orally, in writing or in print, or in the form of art,
or through any other media of his choice.

(3) The exercise of the rights provided for in paragraph 2 of this article
carries with. It special duties and responsibilities. It may therefore be subject
to certain restrictions, but these shall only be such as are provided by law and
are necessary; (a) for respect of the rights or reputations of others; (b) For the
protection of national security or of public order (ordre public), or of public
health or morals.’

In the case of Zambia and other African countries, there are also the more
modest provisions of art 9 of the African Charter on Human and Peoples’
Rights which declare the right of every individual to receive information and
to express and disseminate his opinions ‘within the law’.

I make reference to the international instruments because I am aware of a

growing movement towards acceptance of the domestic application of
international human rights norms not only to assist to resolve any doubtful
issues in the interpretation of domestic law in domestic litigation but also
because the opinions of other senior courts in the various jurisdictions dealing
with a similar problem tend to have a persuasive value. At the very least,
consideration of such decisions may help us to formulate our own preferred
direction which, given the context of our own situation and the state of our
own laws, may be different to a lesser or greater extent. What is certain is that
it does not follow that because there are these similar provisions in
international instruments or domestic laws, the courts in the various
jurisdictions can have or have had a uniform approach. For one thing, as the
examples I have quoted show, the right to free expression and free speech is
qualified by exceptions, in some cases more heavily than in others. For
another, we are at different stages of development and democratisation and the
courts in each country must surely have regard to the social values applicable
in their own milieu. The question before me in these actions is whether the
law of defamation as currently applied derogates from, among others, the
freedom of the press guaranteed by art 20 and if so what modifications would
reasonably be required to be imported or imposed in order to give effect to the
intention of the Constitution.

Counsel for the defendants argued that Sullivan provides a suitable precedent
of the attitude and direction the courts in Zambia ought to take. The First
Amendment is not even as elaborate as our art 20 but the Supreme Court of
the United States was able to imply some requirements in order to promote the
 625

freedom guaranteed by the Constitution. They said they had no difficulty in

distinguishing among defamation plaintiffs and categorised them as plaintiffs
who are public officials on the one hand and those who are private individuals
on the other. They held that the constitutional guarantee of freedom of speech
and press prohibits a public official from recovering damages for a
defamatory falsehood relating to his official conduct unless he (the plaintiff)
proves that the statement was made with ‘actual malice’, that is with
knowledge that it was false or with reckless disregard of whether it was false
or not; finding that such a qualified privilege of honest mistake of fact is
required by the First and Fourteenth Amendments in order to give citizens and
newspapers a ‘conditional privilege’ immunising non-malicious defamatory
misstatements of fact regarding the official conduct of a government officer.

Since the defendants rely quite heavily on Sullivan and other American cases,
I intend to consider some of these cases in greater detail in a moment.
However, I think it is important for me at this stage to dispel any suggestion
that only the American courts or the common law as applied in that country
have recognised the importance of the freedom of free speech and the press in
a democracy nor the banaful effects of libel litigation on the free press. The
chilling effect or the tendency to inhibit free discussion induced by litigation
or threats of litigation is universally recognised and no doubt taken into
account particularly when the matter concerns public institutions and public
officials as well as the public interest. There is in fact a lot more in common
among the common law jurisdictions than there are differences. Thus the
underlying rationale for protection free speech and its importance to good
governance and democracy, the question of the public conduct of public
officials, the liability of public persons to greater scrutiny, considerations of
what matters can properly be regarded as matters of public interest, protection
for private reputation and character, all these and many more generally find
common expression and treatment. These seem to be differences when it
comes to local variables in the limits afforded by the recognised defences, any
local statute law on the subject and the factors entitling or disentitling the
plaintiff to a remedy. Certainly Sullivan introduced modifications which have
not found universal acceptance when it restricted a public official’s right to
redress in libel action by finding a conditional privilege, by changing the
burden and standard of proof, by narrowing the common law ambits of
express or actual malice available to a public official and by positively
condoning defamatory falsehoods unless the plaintiff proves actual malice a
narrowly defined by that august court. Even the defence of fair comment
which is based on the availability of a sufficient substratum of true facts and
which is generally defeasible if grounded on misstatements was heavily
adjusted against the public official in favour of free speech and press. Thus
we find that the court held that the Fourteenth Amendment required
recognition of a conditional privilege for honest misstatements of fact so that
fair comment should be available for honest expression of opinion based on
the privileged but false facts, to the same extent as comment on true facts,
 626

unless the plaintiff public official proves actual malice and this to the higher
standard of proof of ‘convicting clarity’ found to be required by the
Constitution.

For completeness, I should refer to some aspects of Sullivan with which most
courts would have no difficulty. The libel action was brought in a state court
(circa 1960) by a public official against a newspaper and the authors for
publication of an advertisement describing the maltreatment in an Alabama
city of negro student protesting against segregation. There were references in
the article to harassment of Dr Martin Luther King who was allegedly
frequently arrested for trivial alleged infractions and whose residence had
been physically attacked, the use of excessive force by the police to break up
peaceful demonstrations by negro students and their sympathisers, and a
reference to Constitution-violators in the south trying very hard to kill the
movement for negro rights, including desegregation and the right to vote. The
criticisms were aimed at officialdom and the police generally; the plaintiff
was not personally identified nor targeted and the United States Supreme
Court, quite properly in my view, criticised the attempt by the plaintiff to
transmute the impersonal criticism of government into personal criticism of
himself as the official heading the department in charge of the police. As
headnote 38 of the report puts it:

''the constitutional guarantee of freedom of speech and press precludes an

otherwise impersonal attack on governmental operations from being treated as
a libel of an official responsible for those operations.''

I am myself nor surprised that the United States Supreme Court overturned the
lower court’s verdict, as it were, even on the merits. There was clearly no
reference to the plaintiff so that the newspaper did not write of or concerning
him. Even the few factual errors which were there (that Dr Martin Luther
King had been arrested seven times instead of four, and that the police had
‘ringed’ a university campus when in fact they had been deployed there but
without literally surrounding the campus) were properly accepted as inevitable
in any free debate; they did not go to the root of the genuine grievance, the
subject of the publication, which was undoubtedly a matter of much current
public interest. Section 7 of our Defamation Act – which I will be coming to
late – would have applied to save the plea of fair comment if this case had
been tried in our courts and there had been a proper reference to the plaintiff
personally.Where there has been impersonal criticism, I would myself go
along with the reasoning in Sullivan. It is this same type of reasoning which
led the House of Lords in Derbyshire CC v Times Newspapers Ltd [1993] 2
LRC 617, [1993] AC 534 to hold that a local authority cannot bring an action
for libel. Their Lordships held that, since it was of the highest public
importance that a democratically elected governmental body should be open
to uninhibited public criticism, and since the threat of civil actions for
defamation would place an undesirable fetter on the freedom to express such
 627

criticism, it would be contrary to the public interest for institutions of central

or local government to have any right at common law to maintain an action
for damages for defamation; and that, accordingly, the plaintiff council was
not entitled to bring an action for libel against the defendants. I entirely agree
with this conclusion.

The question arises: should the rationale and principles relating to impersonal
criticism be extended to public officials in the wholesale manner suggested by
the submission in this case? In the opinion of the court in Sullivan, which was
delivered by Brennan J, stress was laid on the fact that the alleged libellous
publication caused injury to official reputation. The court weighed the public
interest of the public’s receiving information against possible injury to the
official reputation of public figures and took the view that the chances of
injury to the private or personal characters were usually very small when the
discussion was on official conduct. The judges were ever so careful to draw
the distinction between injury to official reputation arising from official
conduct and injury to the personal character of an official. The protection of
Constitution was not extended to injury to private character or the private
conduct of a pubic official. I would like to quote perhaps usually extensively
from the separate opinion of Goldberg J in Sullivan (1964) 376 US 254 at
301-303, 11 L Ed 2d 686 at 720-722:

''Our national experience teaches that reparations breed hate and 'that hate
menaces stable government.' Whitney v. California, 274 US 357, 375, 71 L
Ed 1095, 1106 (Brandies, J., concurring). We should be ever mindful of the
wise counsel of Chief Justice Huges: '[I]mperative is the need to preserve
inviolate the constitutional rights of free speech, free press and free assembly
in order to maintain the opportunity for free political discussion, to the end
that government may be responsive to the will of the people and that changes,
if desired, may be obtained by peaceful means. Therein lies the security of the
Republic, the very foundation of constitutional government.' De Jong v.
Oregon, 299 Us 353, 365, 81 L Ed 278, 284. This is not to say that the
Constitution protects defamatory statements directed against the private
conduct of a public official or private citizen. Freedom of press and of speech
insures that government will respond to the will of the people and that
changes may be obtained by peaceful means. Purely private defamation has
little to do with the political ends of a self-governing society. The imposition
of liability for private defamation does not abridge the freedom of public
speech or any other freedom protected by the First Amendment. This, of
course, cannot be said 'where public officials are concerned or where public
matters are involved …[O]ne main function of the First Amendment is to
ensure ample opportunity for the people to determine and resolve public
issues. Where public matters are involved, the doubts should be resolved in
favor of freedom of expression rather than against it.' Douglas, The Right of
the People (1958), p 41. In many jurisdictions, legislators, judges and
executive officers are clothed with absolute immunity in the discharge of their
 628

public duties. See e.g., Barr v. Matteo 360 US 564, 3 L Ed 2d 1434, City of
Chicago v. Tribune Co. 307 I11., 595 at 610, 139 N.E. at 91. Judge Learned
Hand ably summarized the polices underlying the rule: It does indeed go
without saying that an official, who is in fact guilty of using his powers to
vent his spleen upon others, or for any other personal motive not connected
with the public good, should not escape liability for the injuries he may so
cause; and, if it were possible in practice to confine such complaints to the
guilty, it would be monstrous to deny recovery. The justification for doing so
is that it is impossible to know whether the claim is well founded until the
case has been tried, and that to submit all officials, the innocent as well as the
guilty, to the burden of a trial and to the inevitable danger of its outcome,
would dampen the ardor of all but the most resolute, or the most irresponsible,
in the unflinching discharge of their duties. Again and again the public
interest calls for action which may turn out to be founded on a mistake, in the
face of which an official may later find himself hard put to it to satisfy a jury
of his good faith. There must indeed be means of punishing public officers
who have been truant to their duties; but that is quite another matter from
exposing such as have been honesty mistaken to suit by anyone who has
suffered from their errors. As is so often the case, the answer must be found
in a balance between the evils inevitable in either alternative. In this instance
it has been thought in the end better to leave unredressed the wrongs done by
dishonest officers that to subject those who try to do their duty to the constant
dread of retaliation '.''

The foregoing is instructive. Another American case which was cited and
which I have considered is Curtis Publishing Co v Butts; Associated Press v
Walker (1967) 388 US 130, 18 L Ed 2d 1094, where the United States
Supreme Court extended the Sullivan principle to public figures who are not
public officials. The court was very careful not to give the impression that the
press were to be given a blank cheque to embark upon a course of destruction
of the reputations of public officials or public figures. As Harlan J pointed out
(388 US 130 at 146-147, 18 L Ed 2d 1094 at 1106):

''We are told that '[t]he rule that permits satisfaction of the deep-seated
need for vindication of honor is not a mere historic relic, but promotes the
law’s civilizing function of providing an acceptable substitute for violence in
the settlement of disputes,' Afro-American Publishing co. v. Jaffe 125 U.S.
App. D.C. 70, 81, 366 F. 2d 649, 660, and that: 'Newspapers, magazines, and
broadcasting companies are businesses conducted for profit and often make
very large ones. Like other enterprises that inflict damage in the course of
performing a service highly useful to the public… they must pay the freight;
and injured persons should not be relegated [to remedies which] make
collection of their claims difficult or impossible unless strong policy
considerations demand.' Buckley v. New York Post Corp. 373 F. 2d 175, 182.
We fully recognize the force of these competing considerations and the fact
that an accommodation between them is necessary not only in these cases, but
 629

in all libel actions arising from a publication concerning public issues. In

time, Inc., v Hill 385 U.S. 374, 388, 17 L Ed 2d 456, at 467 we held that
'[t]he guarantees for speech and press are not the preserve of political
expression or comment upon public affairs…' and affirmed that freedom of
discussion 'must embrace all issues about which information is needed or
appropriate to enable the members of society to cope with the exigencies of
their period'.''

The court went on to counsel against ‘blind application of New York Times
Co v Sullivan.’ I would respectfully take heed of such counsel.

Before I can consider whether the Sullivan approach can be regarded as

desirable or necessary in Zambia in order to lend greater meaning and effect
to the intention of our are 20, I have to examine the framework of the law of
defamation which is currently available to us. As Mr Sikatana correctly
submitted, I have to bear in mind the exceptions under at 20, especially that
relating to reputation which has not been limited to private or official
reputation but is a right necessarily guaranteed to everyone. I am also alive to
the provisions of the Defamation Act which in s 7 (for fair comment) and s 6
(for justification) offer relief by permitting a reasonable margin of
misstatement of facts, one of the matters that preoccupied the court in
Sullivan. Section 9 of the Act offers relief by giving the newspapers qualified
privilege in the circumstances set out in the section and the schedule, details
of which I need not here recite save to observe that the qualified privilege
covers a fairly wide range of subjects of public interest. Again s 10 offers
relief for non-malicious libels published without actual malice and without
gross negligence under the conditions described in the section to which
reference should be made for its full term and effect. These were some of the
obvious benefit and promotion of free speech and press. I have also
considered the common law applicable, which is the same as that in England
and, in this regard, I have had a quick look at a Gatley on Libel and Slander
(8th edn, 1981) especially in the passages dealing with the public interest and
comment on matters of public interest. Paragraph 695 discusses whether the
press have any special rights not shared with everyone else to make a
comment upon a public officer or person occupying a public situation and
concludes that they do not. On the authorities therein cited, a journalist may
go to whatever lengths the ordinary citizen may go and, except where the
statute law otherwise provides, the range of his assertions, his criticism, or his
comments, is as wide as, and no wider than, that of everyone else. Again the
authorities discussed in para 884 show that the limits of comment on a matter
of public interest are very wide indeed, especially in the case of public
persons. When under attack, those who fill public positions must not be too
thin-skinned. They are also taken to have offered themselves to public attack
and criticism and the public interest requires that public conduct shall be open
to the most searching criticism. In my considered opinion, the so-called
public official doctrine urged by Mr Sikota already receives recognition
 630

though not exactly in the manner proposed by Sullivan. Even the so-called
‘Fish Tank’ theory whereby the public conduct of public persons is subjected
to constant observation and scrutiny is already otherwise recognised. The
chilling effect of libel actions on the freedom of the press so vital to
democracy is universally accepted although the strategies to counter this may
differ. The Americans came up with Sullivan. The English in the Derbyshire
County Council case came up with disallowing local and central government
organs. They have also encouraged a wider scope of comment on public
matters. With regard to false material, the Defamation Act already mitigates
in some way the common law principles which condemn misstatements and
attach unfairness to any comment which is not well grounded. All these
matters formed the basis of the discussion in Sullivan which sought to modify
these shared principles in order to straighten free speech and press and
impose fetters on public plaintiffs. The common law as developed through
the cases and generally also has an established set of principles, though some
still evolve as circumstances change or arise. Thus the matters to be proved
by a plaintiff and those to be proved by the defendant are fairly well settled
whether the defence is non-publication or non-reference, lack of defamatory
meaning, consent of the plaintiff, justification, absolute or qualified privilege,
fair comment, apology and payment into court under Lord Campbell’s Acts,
offer of amends under the Defamation Act, accord and satisfaction, and in the
case of slander only, lack of special damage where required or remoteness of
the same, mere vulgar abuse, and so on. The principal defence in the cases
before me is that of fair comment on matters of public interest. The common
law has evolved a number of considerations which would establish malice or
render a comment unfair. The effect of Sullivan was to narrow quite
considerably, in relation to a public official, the range of factors that would
prove malice or render a comment unfair. It also extended quite considerably
the relief available to the press whose injurious shortcomings were to be given
a generous amnesty. It also established a novel type of qualified or
conditional privilege available to all.

Our Constitution in art 20 recognised both the freedom of the press and the
right to reputation. A balance has to be struck and I do not consider that a
good balance can be struck by shifting the burden or standard of proof, nor by
straining to discover a new qualified privilege, nor by immunising falsehoods
to any greater extent than the Defamation Act already provides.

Let me make it clear that I fully endorse the view that some recognition ought
to be given to the constitutional provisions in art 20 and I accept that
impersonal criticism of public conduct leading to injury to official reputation
should generally not attract liability if there is no actual malice and even if,
pursuant to s 7 of the Defamation Act the truth of all facts alleged is not
established if the imputation complained of is competent on the remainder of
the facts actually proved. However, I would reject the proposition in Sullivan
to the extent that it sought to legalise character character assassination of
 631

public officials or to shift the burden of proof so that knowledge of falsity or

recklessness should be proved by the plaintiff and to a degree of convincing
clarity. In this regard and although I do not necessarily wish to follow the
way they sought to give recognition to their own constitutional provisions, I
find that the Australians properly rejected the Sullivan approach in
Theophanous v Herald and Weekly times Ltd [1994] 3 LRC 369, 124 ALR 1.
The High Court of Australia said ([1994] 3 LRC 369 at 391-392, 124 ALR 1
at 23-24):

''However, once it is acknowledged, as it must be, that the existing law

seriously inhibits freedom of communication on political matters, especially in
relation to the views, conduct and suitability for office of an elected
representative of the people in the Australian Parliament, then, as it seems to
us, that law is inconsistent with the requirements of the implied freedom of
free communication. The law of defamation, whether common law or statute
law, must conform to the implication of freedom, even if conformity means
that plaintiffs experience greater difficulty in protecting their reputations. The
interests of the individual must give way to the requirements of the
Constitution. At the same time, the protection of free communication does not
necessitate such a subordination of the protection of individual reputation as
appears to have occurred in the United States. For that reason the defendant
should be required to establish that the circumstances were such as to make it
reasonable to publish the impugned material without ascertaining whether it
was true or false. The publisher should be required to show that, in the
circumstances which prevailed, it acted reasonably, either by taking some
steps to check the accuracy of the impugned material or by establishing that it
was otherwise justified in publishing without taking such steps or steps which
were adequate. To require more of those wishing to participate in political
discussion would impose impractical and, sometimes, severe restraint on
commentators and others who participate in discussion of public affairs. Such
a restraint would severely cramp that freedom of political discussion which
is so essential to the effective and open working of modern government. At
the same time, it cannot be said to be in the public interest or conducive to the
working of democratic government if anyone were at liberty to publish false
and damaging defamatory matter free from any responsibility at all in relation
to the accuracy of what is published. In other words, if a defendant publishes
false and defamatory matter about a plaintiff the defendant should be liable in
damages unless it can establish that it was unaware of the falsity, that it did
not publish recklessly (i.e., not caring whether the matter was true or false)
and that the publication was reasonable in the sense described. These
requirements will redress the balance and give the publisher protection,
consistently with the implied freedom, whether or not the material is accurate.
In one other respect the Sullivan concept of actual malice calls for some
justification. As already noted, the common law connotation of malice
embraces ill-will, spite and improper motive. There is an argument for saying
that 'actual malice' should likewise extend to such motivating factors.
 632

However, it seems to us that, once it is accepted that it is necessary to show

that the publication was reasonable in the sense to which we referred, there is
no occasion to include malice according to its common law understanding as
an element in the test to be applied. It will be noted from the preceding
paragraphs that we do not consider that the plaintiff should bear the onus of
proving that the publication is not protected. In our view, it is for the
defendant to establish that the publication falls within the constitutional
protection. That approach accords with the approach that the courts have
taken in the past to proof of matters of justification and excuse and we are not
persuaded that the constitutional character of the justification should make any
difference to the onus of proof. Whether the defendant has acted reasonably
will involve consideration of any inquiry made by the defendant before
publishing that is a matter peculiarly within the knowledge of the defendant.''

If we were in the same boat with the Americans and the Australians, I would
hide with the Australians and the way they have proposed to protect the
freedom to debate political issues and the fitness of a politician to hold office.
In both countries, they distilling some principles by implication after finding
that their Constitutions required such an exercise. In contrast, our own
Constitution is less vague, though I agree with the general principle of not
simply allowing the existing law of defamation to operate without due regard
to the need to lend greater meaning and effect to the art 20 provisions. The
dilemma is that our Constitution attaches equal importance to freedom of the
press and the right to reputation, without distinction whether such reputation
belongs to a private or public individual. I have agonised and given very
careful consideration to the competing propositions that it is for the interests
of society that the public conduct of public men should be criticised without
any other limit than that the writer should have an honest belief that what he
writes is true; and the equally important public interest in the maintenance of
the public character of public men for the proper conduct of public affairs
which requires that they be protected from destructive attacks upon their
honour and character if made without any foundation. I have come to the
conclusion that there is no need to formulate a new set of principles to impose
new fetters on the right of a public official to recover damages. However, in
order to counter the inhibiting or chilling effect of litigation, I am prepared to
draw a firms distinction between an attack on the official public conduct of a
public official and imputations that go beyond this and attack the private
character of such an official which attack would be universally unsanctioned.
I am also prepared, when considering the defence of fair comment on a matter
of public interest arising from the conduct of a public official, to be more
generous and expansive in its application. Of course, it would be unwise for
me to attempt an exhausive description of what would be a generous
application of the defence but it seems to me that where an allegation
complained of can properly be regarded as comment on the conduct of a
public official in the performance of his official duties or on conduct
reflecting upon his fitness and suitability to hold such office, freedom of
 633

speech and press can best be served in Zambia by the courts insisting upon a
higher breaking point, or a greater margin of tolerance than in the case of a
private attack before an obvious comment based on facts which are
substantially true can be regarded as unfair. Although considerably stretched
at the seams, the existing defence would remain intact and the public official
still able to recover damages for comment that is rendered unfair by any
outrageous or aggravating features in the case.

In a sum, it is my considered opinion that the constitutional protection of

reputation and free speech or press can best be balanced in Zambia, when the
plaintiff is a public official who has been attached in that character, by a more
generous application of the existing defences. The chilling effect of litigation
would thereby be mitigated to some extent, just as it would be considerably
eased by the courts constantly seeking to promote free speech and press by
keeping a careful eye on the size of awards which perhaps are the true chilling
factor especially if they involve any exemplary or punitive element. What is
certain also is that, as Mr Sikatana suggested, since both the freedom of the
press and the right to reputation are recognised in art 20, no higher value can
be placed on the one as against the other nor can one part of the Constitution
be said to conflict with another part in any ‘unconstitutional’ way since the
whole document legalises itself. The trick is to balance the competing rights
and freedoms and on principles, as I hoe I have managed to explain, the
resolution lies in the application of the existing law in a more imaginative and
innovative way in order to meet the requirements of an open and democratic
new Zambia. In this way, the press can be given some breathing space
without the courts suggesting that freedom of the press will be freedom to
defame. So much being premised, I now turn to the cases before me.

I heard evidence from 21 witnesses. The plaintiff testified on his own behalf
and called one witness, while the defendants called 19 witnesses. In all the
cases, there was no dispute that the articles complained of were published and
that they explicitly referred to the plaintiff. The action 1992/HP/1395 was
based on an article headed ‘Michael Sata’ in the newspaper dated 22 to 28
May 1992 and the article appeared on what loosely be termed the editorial
page. The plaintiff relied on the natural and ordinary meaning and/or
innuendo and attributed several defamatory imputations to the article. The
defence put forward was one of fair comment. The article started by noting
that the plaintiff was a political survivor, adding that in the second Republic
‘he survived vetting on several occasions.’ The evidence which I have
accepted is that the plaintiff was vetted only on one occasion and not several
as alleged. The vetting referred to the practice in the past when the leadership
of the sole party then allowed used to screen candidates for election and bar
those whose candidature was considered to be inimical to national interests. I
do not regard the reference to vetting or the error in the number of occasions
as defamatory. Next, the newspaper wrote that in 1990 the plaintiff’s political
prostitution prompted the former president’s decision to fire him. To call a
 634

politician and a minister a political prostitute is clearly defamatory. The

defendants’ position was that this statement was a fair comment being a
conclusion which could legitimately be made from the facts. Of course, I do
not doubt the principle that an allegation can still be a comment if it is an
inference of fact which could legitimately be drawn from other facts.
However, where a bold allegation of this kind cannot be distilled from other
facts stated or indicated in the publication complained of: See Kemsley v Foot
[1952] 1 All ER 501, [1952] A.C. 345. I am prepared to stretch the
requirement of indication to any facts shown to be notorious or at least known
to the person or persons to whom the libellous allegation is published. If the
facts are not so indicated or referred to, then it has long been accepted that the
statement of opinion will stand in the same position as an allegation of fact:
see Gatley para 696. In reference to this allegation, the editor of the defendant
newspaper, Mr Phiri, testified that the conclusion was based on reports they
had received and the fact that the plaintiff had accepted a post in the MMD
government contrary to his earlier declaration at a political rally that he was
not interested in a political position. Mr Phiri said that it was left up to the
readers to figure out the political prostitution which had prompted President
Kaunda to fire the plaintiff. Mmembe, the editor-in-chief and managing
director of the paper, testified that the plaintiff was labelled a political
prostitute for jumping from one party (the UNIP) to another (the MMD) and
for having associated with the people in the MMD before he was fired. None
of these explanations was available to the readers and they were neither
offered nor was it indicated in the publication in order to afford the readers the
opportunity to form their own judgment on the matter and to judge whether
the defendants’ conclusion was competent or not. The reader was left to
speculate and think that the paper must have its own secret facts for making
such a bold allegation, unsupported by anything available to the readers. In
any event, even had the reasons revealed to the court been made available to
the readers, I cannot imagine that anyone would consider a person to be a
political prostitute for joining a party of his own choice after the
reintroduction of a new political dispensation allowing for the formation of
other parties. This allegation was patently injurious to the plaintiff in his
private and personal character and in his political and official character and
cannot conceivably be protected by the defence put forward, even on a more
generous application of it as I have earlier proposed.

The article complained of went on to describe the plaintiff in other

extravagantly uncomplimentary terms. These included a list actions described
as ‘thoughtless’ such as the razing of houses in Kanyama, his alleged order
to fire striking workers, the alleged awarding of contracts to associates,
riotous behaviour in Chadiza and outrageous or intolerant behaviour on
television. There was a reference to investigations against the plaintiff by the
Anti-Corruption Commission and the plaintiff’s misleading the nation about
the presence of an arms cache at Sindamisale. After criticising the President
for not dismissing the plaintiff, the defendants concluded by saying ''Our
 635

sincere conclusion is that there is nothing “honourable” about this clearly

dishonourable man.''

I have given anxious consideration to the rest of this generally defamatory

article. The examples of allegedly thoughtless actions are subjects that had
been reported in various other newspapers with a national circulation and on
the electronic media. The evidence that I heard from the witnesses, including
General Chinkuli on the arms cache, together with the documentary exhibits,
especially The Times of Zambia and Zambia Daily Mail newspapers, has
satisfied me that there was a sufficient substratum of facts on which to base
the comments made. The question is not whether I agree with the comments
or the conclusions but whether an honest person, however prejudiced, might
hold such opinions. Even the disputable conclusion that there was nothing
honourable about the plaintiff was prefixed by a list of circumstances and the
reader was free to form an independent opinion and to judge if the paper was
right or wrong. I am, of course, alive to the contention on the part of the
plaintiff that the defendants either did not substantiate the facts or made
mistakes. For example, I am aware that the plaintiff has never accepted that
he had personally ordered the razing of houses. However, other daily
newspapers produced in evidence as exhibits showed that the plaintiff was in
the forefront in defending this action by the local council. They also showed
that the plaintiff was held accountable in his official capacity as the minister
of local government at the time, rather than in his private capacity. That the
plaintiff took up the official defence of the razing of houses was also manifest
in the ‘Face to Face’ television programme which was played back to the
court during these proceedings. I am satisfied that, by the time the defendants
listed the razing of houses as one of the plaintiff’s allegedly thoughtless
actions, the public and general readership of newspapers in this country had
already been conditioned by previous publications to attach official blame.
The example that the plaintiff ordered the firing of striking workers was not
supported by any evidence whether direct or indirect in these proceedings.
However, it was just one example out of several given to support the comment
about being thoughtless and the Defamation Act applies to the failure to
establish the one example. The example regarding the award of contracts to
associates was not borne out by the evidence concerning the contract awarded
to Merzaf to build houses in Chilenje township. I find that the plaintiff was
not guilty of any wrongdoing and this was borne out by the evidence of Mr
Russell of the Anti-Corruption Commission. However, the evidence-
including the ‘Face to Face’ programme – showed that the plaintiff has been
reported on the subject and had stoutly defended the contract, once again
leading to public attribution of the now costly project to him in his official
capacity. Indeed, I accept the evidence that this contract ran into difficulties
the minute the plaintiff left the Ministry of Local Government and Housing
and the successors refused to give it the support which the plaintiff had given
in his time. There were other contracts concerning the sale of council houses
which the plaintiff had to facilitate or authorise. The plaintiff himself gave me
 636

a long list of names, including that of his wife, as being the people allowed to
buy council houses. I am satisfied that the example about awarding contracts
was supported by a sufficient amount of actual fact. Concerning the alleged
riotous behaviour in Chadiza, there was indirect evidence given although no
previous newspaper reports were produced to me. From the evidence of some
defence witnesses, including Mr Nkolola of ZNBC, I accept that there was an
incident in Chadiza where some mourners from the ruling party were stoned at
a funeral and which was even discussed on a television programme although
the tape for this could not be found. There was nothing to show that the
plaintiff provoked the incident. The television programme publicly seen by
viewers was also one of the programmes relied on to support the allegation
that the plaintiff behaved outrageously and intolerantly on television before
the whole nation. The other was the ‘Face to Face’ programme shown to the
court where the plaintiff was interviewed by Mrs Goretti Mapulanga, a well-
known interviewer on our small screens. In that programme, the plaintiff
criticised the media in general and the first defendants by name for their
shortcomings when reporting on issues. He defended the award of the
contract to Merzaf, the razing of houses by the council, early retirements for
council workers and the handling of the funds meant for arrears of salaries
and allowances which the government had inherited. The general impression
gained by this court after watching the replay of the programme was that both
the guest and the hostess were quite rumbustious, jovial and slightly
disorderly. I am satisfied that the example and comment regarding the
performance of the plaintiff on television was based on a sufficient substratum
of fact. Again the article went on to refer to the plaintiff’s denials that the
Anti-Corruption Commission was investigating him. The evidence before me
established the factual basis for the comments made. The global conclusion in
the article about the plaintiff not being honourable was certainly harsh and
probably an opinion not shared by anyone else but, as I have already stated, it
was prefixed by the examples which were listed. The law protects even the
minority opinion of a defendant who honestly comments on a public official
and has facts to lean on.

Except for the allegation that the plaintiff was a political prostitute, on which
I find for him, I find for the defendants on the rest of the article in cause
1992/HP/1395. On the evidence, and if necessary calling in aid the
Defamation Act, the defence of fair comment is available on these other
allegations or comments having regard to such of the facts as have been
established or were already notorious in the public domain.

In cause number 1992/HP/1804, the complaint concerned the edition of 31

July to 6 August 1992. There were two articles, that is the main story on the
front page headlined ''King Cobra meets his Waterloo-Lupunga clobbers
Sata'' and an editorial under the heading ''Sata(nic) deeds''.
 637

The gravamen of the main story was that the plaintiff was physically
clobbered by another minister in the National Assembly motel bar room when
the plaintiff provoked the other by his belligerence and abusive language. The
first defendant described the incident in gloating terms showing that blows
were exchanges and the plaintiff ended up lying helpless on the ground, hurt
and humiliated, and had to be rescued by the security men from further
damage. The plaintiff’s account of the incident was characterised by
excessive economy on the truth and only skilful and determined cross-
examination prised an admission from him that any ill-tempered
confrontation had taken place at all between himself f and Minster Lupunga. I
have considered the evidence from the eye witness. There are four stages of
drunkenness, namely jocose, bellicose, lachrymose and comatose. The
evidence and the descriptions of the events left me in no doubt at all that the
ministers, and probably some of the witnesses had passed the first stage. The
eye witnesses called by the defence were basically agreed that a quarrel
erupted and Lupunga violently charged towards the plaintiff, knocking down
the witness Nganga who was in the way, and with, quite clearly, obvious
intent. One witness said the plaintiff was actually violently pushed so that he
fell against the back of a sofa chair while the other said that Lupunga was
restrained before he could carry out his intentions so that the plaintiff was
simply at the risk of being clobbered rather than that he was clobbered. Both
eye witnesses denied that fists flew, or that the plaintiff ended up lying on the
ground or that any security men intervened. I agree with the witness who said
the defendant had sensationalised the incident. I find they were gloating and
full of glee over the supposed thrashing of the plaintiff. The bottom line,
however, was that violent confrontation which disturbed the peace and was
unsuitable for ministers to participate in did take place. This I find as a fact.

What was the sting of the libel complained of in this particular article? The
plaintiff pleaded in his statement of claim that it was defamatory to impute
that he was physically incapable of defending himself. I thought that the
plaintiff did nor pursue this line of complaint with any conviction and I do not
think that it would be defamatory to report that someone has been beaten. The
plaintiff, I find, was not in fact beaten and the gloating style adopted by the
paper grossly exaggerated the physical confrontation that did take place. The
fracas itself was not something any minister could be proud of and it was not
wrong to suggest that a bar-room brawl of this kind was dishonourable and
that those who participated were unruly. The opinion was amply supported by
the true facts once the overdramatisation is discounted. Indeed, the cause of
action based on this particular article came very close to collapsing of its own
inanition. I find for the defendants on this one. The next article in the
particular edition was the editorial headed ''Sata(nic) deeds''. The article is
worth reproducing and it reads:

''Not only is your edition of the Weekly Post this week a celebratory one,
commemorating our first anniversary, but it is also rather 'Satamanian'. If
 638

newspaper printing costs were low, and newsprint cheap, Sata’s exploits could
quite easily provide copy to fill a tabloid newspaper every week. Two months
ago, we said there was nothing honourable about this clearly dishonourable
man, and we also lamented about his risky behaviour at a Chadiza funeral,
when he endangered the lives of dignified men, among them, Home Affairs
Minister Newstead Zimba. Soon after that, his foolish behaviour during a
ZNBC panel discussion, under the guise of 'chimbuye', was quite
objectionable. We are not surprised that his penchant for controversy led to
his being beaten last Sunday. It was bound to happen. And were it not for the
brave security guard on duty, you might have been reading an obituary of the
once notorious King Cobra. This time, however, the motel fracas not only
endangered Lupunga’s reputation, but it could have also led to his
imprisonment on charges of assault, or worse, manslaughter or murder, if
things had gotten more out of hand. But as for Sata, he would have had
nothing to lose, not even a loss of good reputation, since he has none. This
man is not only unruly, but he is also greedy. Early this year, when Lusaka
City Council had stopped the sale of its houses. Sata ordered that a house be
sold to his father-in-law. And now when the entire Avondale area is all but
dry for lack of water, he has directed the Lusaka Water and Sewerage
Company to deliver a tanker of water every week to Sharry Hill house, one of
his Avondale properties. Our ability to comment on his on going court case
with the Zambia State Insurance Corporation concerning his activities at the
Avondale Housing project is curtailed by legal sub judice restrictions. But
early this year, Sata diverted K60 m earmarked for LCC workers’ salaries, to
pay for the Merzaf project in Chilenje. Now, after bashing ZULAWU and
promising that by 30 June, its members’ salary increments would be paid, he
has diverted K1.6 bn to the Merzaf project and to a fixed deposit account at
Standard Bank. While President Chiluba has the prerogative to hire and fire
his ministers, keeping track of the misdeeds and unscrupulous behaviour of
Michael Chilufya Sata is for us, becoming rather tiresome.''

Can be seen, the alleged Sata(nic) deeds have been tabulated. The article
contains in the main comments based on facts stated or indicated in the article
itself. Such facts have been sufficiently established by the evidence. I have
been troubled though by the allegation that the plaintiff would have had
nothing to lose out of the incident at the motel: ''not even a loss of good
reputation, since he has none.''

The law presumes that everyone has a good reputation and where this is
shown not to be the case, a plaintiff with a bad reputation is equally entitled
to have what is left of it protected from further damage. However, in the
context of the article as a whole, it was clear that the defendants were making
the allegation as an inference of fact which none the less remained a comment
or opinion, on the basis of the events tabulated in the first half of the article.
 639

The article then went on to allege that the plaintiff was ‘not only unruly, but
he is also greedy’. To support the latter allegation of greed, which was the
sting of the libel, the article listed the sale of a council house to the plaintiff’s
father-in-law, the arrangement for the delivery of water to his Avondale
residence, his court case which in the event he actually won against the
developers of Avondale, diversion of K60 m, money intended for salaries and
the deposing of K1.6 bn which was meant for workers’ salaries. ‘Greedy’ in
this context and in its ordinary sense denoted an insatiate appetite to acquire
wealth or material benefits. It is a very personal characteristic and could not
have been criticism of the plaintiff in any official capacity. The evidence
which I heard did not support any suggestion of personal benefit in the
derogatory or infamous sense suggested by the article. No evidence was led
to support greed on the part of the plaintiff in connection with his court case
mentioned in the article, nor was any evidence adduced to establish the fact
of, let alone the greed in allegedly diverting K60 m for workers’ salaries to the
Merzaf contract. The evidence led did not reveal that there was any personal
gain on the rest of the transactions listed, with the exception of the deliveries
of water in a tanker from which service other Avondale residents also
benefited. It is my considered opinion that this portion of the editorial article
imputed a corrupt or dishonourable motive which was not warranted by the
facts. Greed was not an inference which a fair-minded person might
reasonably draw from such facts and cold not, I find, represent the honest
opinion of the writer. On my expansive application of the defence of fair
comment when it relates to the official conduct of a public official, the
defence would have been available if the allegation had not been of so
personal a trait as greed so that mere unfairness of the comment for imputing
defamatory but impersonal motives would have not been fatal. However,
since a description that a person is greedy and the imputation that the
transactions cited were examples of and, by implication, motivated by greed
as it is understood in its ordinary sense was a description attacking the
personal and private character of the plaintiff, there is no occasion for
departing from the general principle. This principle is that fair comment
cannot avail the defendant where the allegation made cannot fairly and
reasonably be inferred from the facts. The defamatory allegation then stands
unsupported and is on the same footing as an allegation of fact: see Cobbet-
Tribe v Zambia Publishing Co Ltd [1973] ZR 9. In the event the conclusion
in the editorial under discussion that the plaintiff’s behaviour was
unscrupulous was equally insupportable in view of my finding on the question
of greed although, for the purpose of my decision, the relevant sting was only
in the allegation that the plaintiff was greedy. I find for the plaintiff to the
extent indicated.

In the action 1993/HP/821 which was tried together with the consolidated
actions, the edition of the paper was dated 8 to 14 January 1993, and there
were two articles complained of together with a cartoon. The front page
article was headed ‘ACC hands over King Cobra docket to DPP over financial
 640

irregularities-Sata faces arrest’. The article concerned a sum of K1.6bn

government grant to local authorities which was meant for, inter alia, salary
increases and arrears as a result of negotiations between the unions and the
representatives of the councils. The evidence which I heard established that it
was entirely true and the ACC had investigated and handed over a docket to
the DPP with a view to secure his consent to the prosecution of the plaintiff
under the Corrupt Practices Act for failing to disclose interest in a contract
and abuse of office in connection with the plaintiff’s orders to his officials that
they must place the bulk of the grant money (K1.2 bn) in a deposit account
with Standard Chartered Bank, a bank in which he had shares. It was also true
that the plaintiff did not take the advice of Mr Mapala, his Permanent
Secretary, about the choice of bank since another bank was offering a better
rate of interest. The plaintiff explained why he had chosen the particular bank
but that is beside the point. The point is that the article is that the article was
so factually true that the witness from the ACC, Mr Russell, suspected there
had been a leak and the first defendant had had access to the docket. A
summary of the report of the ACC was subsequently distributed by the
President through his aides at a State House press conference. Although there
may be nothing commendable about the way the information was obtained,
the report was substantially the truth and none of the imputations pleaded by
the plaintiff can be entertained. The inferences and comments on such a true
representations of the facts were neither defamatory nor actionable, and I so
find.

The next article in the paper was an editorial headed ‘Remove Sate.’ In
unmannerly and extravagant choice of diction, the first defendant urged the
President to remove the plaintiff from his ministerial office. The first
paragraph read:

''We have said it before and we will say it again that Michael Chilufya
Sata is not fit to be a minister or hold any public office. Sata is not only a
public nuisance but he is also a liar as well as a selfish, unfeeling and
cantankerous character.''

The defendants relied on previous publications and incidents as well as the

one about the imminent arrest. They warned of some harm to the presidency
and referred to the plaintiff as one of the petty and unscrupulous politician.
They suggested the President remove the plaintiff without waiting for the
Paris Club, among others, to show contempt for corruption and said the
plaintiff was beyond redemption. The paragraph I have quoted and the other
aspects I have isolated cumulatively amounted to a flagrant attack on the very
core of the personal character and the private and public reputation of the
plaintiff. I see little if any comment in the allegations of fact and the
imputations made. The first defendants were asserting that the plaintiff was
this or that and I am myself unable to see that the allegations could fairly and
reasonably be inferred from the facts so as to still be a comment appears as an
 641

inference drawn from those facts, any injustice that it might do will be to
some extent negatived by the reader seeing the grounds upon which he
unfavourable inference is based. But if fact and comment be intermingled so
that it is not reasonably clear what portion purports to be inference, he will
naturally suppose that he injurious statements are base on adequate grounds
known to the writer, though not necessarily set out by him. In the one case the
insufficiency of the facts to support the inference will lead fair-minded men to
reject the inference. In the other case it merely points to the existence of
extrinsic facts which the writer considers to warrant the language he uses.’

I am aware that the Hunt case need to be qualified by more recent

developments, namely the facts on which a comment is made do not always
have to be set out in the publication complained of but can be implied from
the terms of the publication if indicated with sufficient clarity. The only
indication which was there in this case was that the first defendant was relying
on previous publications by them and others and on the same edition’s front
page story. However, the number of independent and original allegations of
positive fact in the passages I have quoted especially the suggestion of
corruption are such that there was, in my considered view, no comment at all,
not even one based on inference. If I am wrong in this conclusion, I would
still find the passages indefensible as fair comment on the ground that the
comment, if it was indeed comment, was not justifiable or warranted by the
facts available. I find for the plaintiff on this.

Finally, there was next to the defamatory editorial a cartoon depicting a large
snake with a human head and which was pinned down by a prong on which
was inscribed ‘1.6 billion’. The evidence showed that the plaintiff has the
nickname of King Cobra and the cartoon related to the front page story and
the editorial comment. I agree entirely that the cartoon cannot be construed in
isolation from the front page article and the editorial. Although it was not
funny, the cartoon was none the less a satirical comment to the effect that the
plaintiff had been caught in some wrongdoing regarding the money referred to
in the other article. The nature of the wrongdoing concerning this money was
fully discussed in the articles and it would be strange for any reasonable
reader to ignore the articles and to read meanings into the cartoon
independently of those articles. I am aware of the argument that even an
illiterate might look at a cartoon and come to some unfavourable conclusions
based on the fertility of the imagination. Illiteracy, as we all know, is a
misfortune and not a privilege and the standard to be applied in a case arising
out of the written word is that of the reasonable reader, that is, a literate
reasonable person who can read the captions and relate pictures to their
context. Any meanings assigned by an out-of-context illiterate imagination
would not qualify as the reasonable understanding of the judicially acceptable
reasonable average person who ordinarily reads newspapers. I am aware of the
meanings contended for by the plaintiff both in the pleadings and in the
evidence. In context, the cartoon added nothing much to the front page article
 642

and was therefore fair comment based on true facts the cartoon has the same
flavour as the lead story and my considered view is that the defence of fair
comment applies to this otherwise defamatory caricature.

In sum, the plaintiff succeeds in the consolidated action only in respect of the
allegations that he was a political prostitute and that he was greedy. In the
other action, the plaintiff succeeds only in respect of the flagrant attack in the
‘Remove Sata’ editorial where the various imputations I have already alluded
to were made, especially the allegation of corruption; imputations which
would stab through even the thicket skin of any public person. These were
serious libels but I bear in mind the whole of the context and the
circumstances, including any role contributed by the plaintiff himself in
exposing himself to frequent attention of the press. He has had opportunities
to take a retaliatory swipe at the defendants as the court saw when the video
tape of the ‘Face to Face’ television programme was played. I am also alive to
the facts that during these proceedings, the plaintiff was less than candid at
times and even managed to spin an elaborate tale that he was in India when
the President held a press conference and distributed a summary of the report
by the ACC. The video tape produced by the witness Nkoloka showed the
plaintiff was present and that was the day his transfer to the Ministry of Health
was announced. I have taken into account the offer of the right to reply made
by the first defendant which cancels quite substantially any failure to retract
and apologise. The defendant has also, in a way, won on some aspects of the
case; just as the plaintiff has also not suffered much actual damage.

Above all, however, I have taken into account the submissions by Mr Sikatana
and Mr Sikota. I have considered the Kapwepwe v Zambia Publishing co Ltd
[1978] Z.R. 15 and bear in mind that the primary object of awarding damages
for defamation is to offer vindication and solatium; money cannot really be
compensation in such cases. The principles of exemplary or punitive damages
discussed in Kapwepwe and other cases apply only in an appropriate case
where the general damages, incorporating any aggravating element, are
insufficient to drive home to a defendant the error of his way. I am myself not
in favour of encouraging the notion of punishment in a civil case, especially
where there has been little actual loss suffered by the plaintiff. I did also say
much earlier on that I considered the true chilling effect on the freedom of
speech and press to emanate from the possibility of awards which are
exorbitant and crippling. There was also a prayer for a perpetual injunction to
restrain the defendants from repeating the libels complained of. With the
vindication and consolation afforded by this judgment, I do not consider that it
would be appropriate to restrain the defendants forever. The plaintiff is a
political public figure and a permanent injunction, like any excessive award,
would be certain to inhibit free debate even on current and future subjects.
Newspapers which cause damage while performing a vital public service
should only be made to pay the freight but not be altogether stopped dead in
their tracks.
 643

Taking all the circumstances into account, I award in respect of the

consolidated action the sum of K500,000 (five hundred thousand Kwacha)
and for the 1993 action another sum K500,000 (five hundred thousand
Kwacha) making a total of K1m compensatory damages by way of solatium.
I enter judgment for the plaintiff in that amount with costs to be taxed in
default of agreement.
 644

MOTOR HOLDINGS (Z) LIMITED v RAJ RAMAN

Supreme Court
Ngulube, C.J, Chirwa and Mambilima J.J.S.
21st November 2001 and 13th December 2001
(SCZ Judgment No. 17 of 2001)

Flynote

Civil Procedure – rehearing of a matter – Conditions thereof.

Courts – Coram - Majority ruling – Effect of.

Headnote

Counsel for the respondent brought a motion under the slip rule alleging
accidental slips or omissions. Counsel advanced a proposition in the motion
to the effect that where one of three Judges who heard an appeal dies before
the judgment is delivered the remaining two Judges are deprived of the
necessary quorum and therefore lack jurisdiction to render a Judgment by the
majority.

Held:

(i) The determination of any question before the Court shall be

according to the opinion of the majority of the members of the
court hearing the case. In the event of the death of a Judge who
was one of the three members of an appellate court which heard
a case, a rehearing must take place only if the remaining two do
not agree and hence there is a deadlock. No rehearing can be
necessary when a majority of the Judges are agreed and even
assuming the deceased Judge been alive he would have
dissented.

Legislation referred to

Supreme Court Act, Cap. 25, s. 3.

Case referred to:

Kelly and Company v Kellond [1888] QBD Vol. 20-569.

Work referred to:

 645

Halsbury’s law of England 4th Edition volume 10 paragraph 726.

W.M. Kabimba of Messrs Kabimba and Company, for the appellant.

J.M.. Chimembe of JMC Associates, for the respondent.

Judgment

NGULUBE, C.J. delivered the judgment of the court.

This is a ruling on a motion moved by the respondent. When we heard the

motion, we denied it and said we would give our reasons later. This we do
now.

On 8th November, 2000, a penal of three Judges heard the appeal in the case
and this was in keeping with Section 3 of the Supreme Court of Zambia Act,
Cap. 25, which in subsection 1 ordains that the court should sit with an odd
number of judges being not less than three. The panel in question consisted of
Ngulube, CJ, Chirwa, JS and the late Muzyamba, JS. After the hearing but
before the delivery of the judgment, the Ccurt suffered the grievous loss of
Justice Muzyamba who expired. In keeping with a longstanding practice of
this court, the judgment of the court if it would have otherwise been a single
unanimous judgment or the individual judgments where at least two judges
are agreed, is delivered as one by the majority. This is what we did in this
case.

The respondent brought a motion colourably under our slip rule, that is Rule
78, alleging unspecified accidental slips or omissions. At the hearing, counsel
abandoned that line of argument without advancing a single submission.
Instead, he dealt with a proposition advanced in the motion to the effect that
where one of three Judges who heard an appeal dies before the judgment is
delivered, the remaining two Judges are deprived of the necessary quorum and
therefore lack jurisdiction to render a judgment by the majority. This startling
proposition was said to be supported by the case of Kelly and Company -v-
Kellond (1). Counsel relied on the following observation by Lord Esher M.R.
at page 572:-

“This court is composed of six members, and if at any time a decision of a

lesser number is called in question, and a difficulty arises about the accuracy
of it, I think this court is entitled, sitting as a full court, to decide whether we
will follow or not the decision arrived at by the smaller number.”

A perusal of the Master of the Roll’s preceding and subsequent remarks shows
that the point – which counsel here has missed – was that the Court of Appeal
was Appeal was there discussing the principle of stare decisis which is still
followed to date. The Court of Appeal follows its own previous decisions
 646

unless resiled from for very good cause in a subsequent case. They were not
discussing the question of sitting to reverse or vary a final judgment already
delivered. Most certainly, they were not discussing what should happen when
one of the judges who heard an appeal dies before judgment is rendered. It
was suggested that a rehearing should ensue as a matter of course. While this
may be inevitable where the remaining Judges are evenly divided – (such as
one against one; two against two; and so on)-no rehearing can be necessary
when a majority of the judges are agreed and even assuming had the deceased
judge been alive he would have dissented. The suggestion that the majority
cannot carry the day flies in the teeth of the law, the very Section 3 of the
Supreme court of Zambia Act cited by counsel who relied on Subsection 1
which requires an uneven number to sit, not being less than three. In
Subsection 2, it says:-

“ (2) The determination of any question before the court shall be according to
the opinion of the majority of the members of the court hearing the case.

The subsection is an exact and complete answer to counsel’s submissions.It

follows therefore that in the event of the death of a judge who was one of the
three members of an appellate court which heard a case, a rehearing must
take place only if the remaining two do not agree and hence there is a
deadlock. If the remaining two agree, they constitute the majority and their
decision is the decision of the coram. We consider that our approach is the
correct one and that it has some support from paragraphs 726 of Vol. 10,
Halsbury’s Laws of England, 4th Edition; where examples are given in the
notes of a judgment written by a deceased Judge being adopted as his own and
delivered by a colleague who sat with him, and an example of a case being
sent for rehearing where two remaining Judges did not agree.

It was for the foregoing reasons that we rejected the motion which, as it turned
out, was not even under Rule 78 any more. Costs follow the event.

Motion rejected
 647

ZNPF BOARD v A-G AND OTHERS AND IN THE MATTER OF

INDUSTRIAL RELATION COURTS DECISION DATED 29TH
OCTOBER ,1982 AND AN APPLICATION FOR CERTIORARI (1983)
Z.R. 140 (H.C.)

HIGH COURT
SAKALA ,J.
27TH SEPTEMBER, 1983
(1983/HP/433) 5

Flynote

Administrative Law - Remedy - Certiorari - When available.

Courts - Hierarchy - Industrial Relations Court - Inferiority to High Court.
Statutes - Construction - Industrial Relations Act, Cap. 517 s. 101 (3).
Administrative Law - Judicial review - Ouster Clause - Effect of Civil
Procedure - Parties - Legal representation - Attorney-General cited - Effect
of.

Headnote

The ZNPF Board, dissatisfied win the decision of the Industrial Relations
Court commenced the present proceedings to hare the decision moved into
the High Court and quashed. The legal argument centred upon the question
whether the Industrial Relations Court was inferior to the High Court, and
whether certiorari could issue despite the provisions of s.101 (3) of the
Industrial Relations Act. During the course of the proceedings a question
arose as to the proper place of the Attorney-General in the case.

Held:

(i) Certiorari is an order issued to an inferior court or a person or

body exercising what the High Covert regards as a judicial or
quasi-judicial function to have the record of proceedings
removed into the High Court for review and if bad to be quashed

(ii) The Industrial Relations Court cannot be equated to the High

Court and for purposes of an application for certiorari it is
inferior to the latter.
 648

(iii) Section 101 (3) of the Industrial Relations Act is an effective

ouster clause.

(iv) Section 101 (3) of the Industrial Relations Act-excludes the

power of the High Court to issue orders of certiorari removing
the proceedings or decisions of the Industrial Relations Court
into the High Court for purposes of quashing the same.

(iv) The Attorney-General was made a party to the

proceedings
because he was the only one who could snake arguments and
submissions on behalf of the Industrial Relations Court.

Cases referred to:

(1) Rex v Chancellor of St. Edmundsbury and Ipswich Diocese ex parte White
[1948] 1 K.B. 195.
(2) Pearlman v Keepers and Governors of Harrow School [1978] 3 W.L.R.
736.
(3) South East Asia Fire Bricks v Non - Metalic Union [1980] 2 All E.R. 689.

Legislation referred to:

Industrial Relations Act, Cap. 517, ss. 96 (2), (3), (4), 100, 101 (2) (3),
Constitution of Zambia, Cap. 1, Arts. 31 (1), 109 (1), (4), (5).
High Court Act, Cap. 50, as. 3 (1), 9 (1) Malaya Industrial Relations Act,
1967, s. 29 (3) (a).

For the applicant: C. Banda, Lisulo and Co.

For the respondents: H. Mbaluku, Mbaluku, Sikazwe and Co. 20
For the Attorney-General:A.G. Kinariwala, Senior State Advocate.

___________________________________
Judgment

SAKALA, J.:
This is an application by the Zambia National Provident Fund Board
(hereinafter referred to as the ZNPF Board) by way of certiorari for an order
to remove the decision of the Industrial Relation Court dated 29th October,
1982, for purposes of quashing it. For convenience, I will refer to the
Industrial Relations Court as the 'IRC' and to the Act as the 'IRA'.

At the outset, it is convenient to clarify the standing of the Attorney-General

in these proceedings. Before the commencement of the hearing, Mr.
Kinariwala submitted that the Attorney-General cannot be made partner to
these proceedings because the State was not a party to the proceedings before
the IRC. He pointed out that whether the IRC is an inferior court to the High
Court or not is a question which did not affect the State or the Attorney-
 649

General. In my ruling at that stage, I pointed out that the application raised a
significant constitutional issue which has not been before the High Court,
namely, the relationship between the High Court and the IRC. Thus I held that
the Attorney-General should be a party to these proceedings although he was
not a party before the IRC. At the close of the arguments and submissions, it
became evident that the only person who could have made arguments and
submission on behalf of the IRC was the Attorney-General. I ordered in my
ruling that the notice of motion be amended to make the Attorney-General the
first respondent. It is for those reasons that the Attorney-General is a party in
these proceedings.

The grounds on which the relief is sought are as follows:

"(1) That the Honourable Court misdirected itself in ordering that

unqualified accountants be paid the same salary as qualified accountants
contrary to the decisions of the applicant's Board of Directors. That the said
decision is counter-productive. That it wants the Board to act against its own
decision which is final.
(2) That according to Company law, the decision of the Board of Directors of
a given concern is the final authority in the matter and therefore the Board of
ZNPF having resolved that unqualified accountants cannot be converted to the
salary scale applicable to the professionally qualified accountants, the court's
decision was therefore wrong both law and in fact."

The application is supported by an affidavit. Paragraphs 4 to 10 of the

affidavit read as follows:

"(4) That I had conduct of this case on behalf of the applicant and that
following the decision of the Industrial Relations Court delivered on the 29th
day of October, 1982, I obtained instructions from the applicant.
(5) That the applicants were totally dissatisfied with the decision of the
Industrial Relations Court and in the premises, they instructed me to move this
Honourable Court with a view of getting an order to remove the proceedings
from the Industrial Relations Court to this Honourable Court for purposes of
quashing the order.
(6) That the respondents were employed by the applicant as unqualified
accountants and their salary scale was S. 8.
(7) That following the job evaluation exercise, the applicant's Board of
Directors resolved that unqualified accountants whose salary scale was S. 8
should not be converted to S. 7 a salary; scale for professionally qualified
accountants.
(8) That the said decision of the Board was reasonable in that it acts as an
encouragement to the unqualified to study hard and obtain necessary
qualifications.
 650

(9) That this notwithstanding the Industrial Relations Court ordered that
unqualified accountants be graded in the same salary as professionally
qualified accountants holding professional certificates.
(10) That it is this decision of the Industrial Relations Court that we
want the Honourable Court to quash."

The affidavit exhibits the decision of the IRC dated 29th October, 1982, and
the minutes of the meeting of the ZNPF Board held on 20th December, 1978.
I must observe in passing that the respondents did not file affidavit in
opposition.

The crux of this application is whether this court has jurisdiction to issue an
order of certiorari to remove into it for the purposes of being quashed a
decision of the IRC. On behalf of the applicant, Mr Banda advanced
arguments in this court under four heads. These heads of arguments can be
summarised as follows: (1) the IRC is an inferior court to the High Court; (2)
the IRC is no part of the judicature of Zambia; (3) finality or ouster clause as
combined in the IRA does :not take away from the High Court the supervisory
jurisdiction over the IRC by way of a writ of certiorari (4) the decision of the
IRC dated 29th October, 1982, is wrong both in law and in fact.

I propose to deal with the first and second heads of arguments together as the
submissions on these overlap. On these two heads of arguments, Mr Banda
submitted that the IRC is inferior to the High Court because it is not a creature
of the Constitution but a creature of an Act of Parliament which is subordinate
to the Constitution. Counsel in support of this submission referred the court to
section 96 of the IRA that establishes the IRC. He further referred to Section 3
of the IRA which defines the word 'court' as a 'court of competed jurisdiction
other than the IRC'. Counsel further referred the court to Section, 96(2) of the
IRA which sets out the composition and membership of the IRC, namely,
chairman., deputy-chairman and two other members or such a greater number
as the President may prescribe. Counsel argued that the High Court on the
other hand is constituted by a single puisne judge. Drawing the attention of the
court to section 96(3) and (4) relating to the qualifications of the chairman an
the deputy chairman of the IRC, namely, to be persons who are or are
qualified to be judges of the High Court, counsel submitted that the IRC does
not necessarily have to be presided over by persons who are judges of the
High Court although they have to be lawyers. Counsel further submitted that
in the light of the foregoing, the IRC cannot be equated to High Court which
has always to be presided over by a judge. Mr Banda also brought to the
attention of the court the fact that the previous chairman of the IRC was not a
High Court Judge. Counsel further made reference to article 31(1) of the
Constitution which defines 'court' as 'a court of law having jurisdiction in
Zambia other than a court established by a disciplinary law.' For the foregoing
reasons, Mr. Banda submitted that this court being superior to the IRC has
 651

jurisdiction to issue an order of certiorari removing the proceedings and

decision of the IRC into it for purposes of quashing it.

In reply to Mr Banda's submissions on the first and second arguments, Mr

Kinariwala, on behalf of the Attorney-General, submitted that the IRC is a
special court conferred with special jurisdiction as contained in Section 98 of
the IRA Mr Kinariwala argued that whether a particular court is a superior
court or not depends on the express provisions of a statute making the same.
He submitted that the Supreme Court is supreme because the legislature says
so and it has been expressly enacted. Equally, the High Court has been
expressly stated to be a superior court of record. But Mr Kinariwala contended
that whether the IRC is an inferior court

p144

or not should also depend on its composition under the IRA He submitted that
under the IRA, the chairman and the deputy chairman have to be High Court
Judges or persons qualified to be High Court judges. He also pointed out that
from the inception of the IRA the chairman has always been High Court
judge and the present chairman is a High Court judge. Drawing the court's
attention to Rule 59 of the IRC Regulations of 1974, Mr Kinariwala submitted
that the judgments of the IRC and the High Court are at par and have to be
treated in similar manner. It was thus Mr Kinariwala's contention that the
High Court and the IRC are at par although with different jurisdiction. For
these reasons, he submitted that this court cannot grant the relief sought.

On behalf of the second respondents, Mr Mbaluku who made very brief

submission and concurred with the submission by Mr Kinariwala on the
question of whether the IRC is an inferior court to the High Court or not. His
submissions are on record. On account of what I have just said, I find it
unnecessary to make review of the same.

I have fully addressed my mind to the arguments and submissions by all

learned counsel to the first two heads of arguments. It must be observed that
under these heads no authorities were cited to support the submission apart
from reference to statutes. The explanation appears to be that this is the first
time that a decision of the IRC has been challenged before the High Court by
way of an application for an order of certiorari.

Certiorari has been generally defined by a number of decided cases and text
book writers as an order issued to an 'inferior court' or a person or body
exercising what the High Court regards as a 'judicial' or 'quasi-judicial'
function, to have the record of the proceedings removed into the High Court
for review (if bad) to be quashed (see Constitutional and Administrative Law
by Hood Phillips, 5th ed. page 535). What is an 'inferior court' for this
purpose, or whether a person or body exercises powers of a 'judicial' or
 652

'quasi-judicial' nature is for the High Court to decide (see page 536 of the
same book). I have no difficulty in my mind in arriving at the conclusion that
the IRC is a court. The Act, Cap. 517, says so (see Section 96 (1) ). I have also
no difficult in holding that on 29th October, 1982, the IRC by its decision
subject of the present application exercised its judicial powers. My greatest
difficulty, however, is whether I can say without any doubt that the IRC is an
'inferior court' to the High Court for me to grant the order sought if I accept
the arguments on merit. Generally speaking, any court or tribunal below the
High Court is inferior to the High Court. But this simplicitic formulation begs
the issue in the instant case. But the two institutions, namely, the High Court
and the IRC have statutory origin. In my opinion, a determination of whether
the IRC is inferior to the High Court must by and large depend on the
statutory provisions as well as the rules governing the two courts. A
comparison of these in my view must lead to a definite conclusion of the
relationship of the two courts.

The statutory provisions establishing the High Court and governing its
procedures are contained in the Constitution of Zambia and the High Court
Act Cap. 50. Part VIII of the Constitution sets out the judicature of Zambia,
namely, the Supreme Court and High Court. Article 109(1)(4)(5) of the
Constitution read:

"109 (1) There shall be a High Court for the Republic which shall have
(save as to the proceedings in which the Industrial Relations Court has
exclusive jurisdiction under the Industrial Relations Act) unlimited 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 this
Constitution or any other law.

(4) The High Court shall be a superior court of record and, save as otherwise
provided by Parliament, shall have all the powers of such a court.

(5) The High Court shall have jurisdiction to supervise any civil or criminal
proceedings, before any subordinate court or any court-martial and may make
such orders, issue such writs and give such directions as it may consider
appropriate for the purpose of ensuring that justice is duly administered by
any such court."

Also sections 3(1) and 9(1) of the High Court Act, Cap. 50 read:

"3(1 ) The High Court, as constituted by the Constitution, Appendix 1 of

the Revised Edition shall be the High Court of Judicature for Zambia.

9 (1) The Court shall be a Superior Court of Record, and, in addition to

any other jurisdiction conferred by the Constitution and by this or any other
written law, shall, within the limits and subject as in this Act mentioned,
 653

possess and exercise all the jurisdiction, powers and authorities vested in the
High Court of Justice in England. " The statutory provisions establishing the
IRC are found in part X of the IRA Section 96 (1) of Cap 517 reads:

"96. (1) There is hereby established for the Republic the Industrial
Relations Court, hereinafter in this part referred to as 'the Court"'.

An examination of these statutory provisions reveal that the High Court is a

creature of the constitution while the IPC is a creature of an Act of Parliament.
The High Court has been expressly stated to form part of the judicature. The
IRC is not said to be part of the judicature. The High Court is superior court
of record with unlimited jurisdiction in civil or criminal matters except where
the IRC has exclusive jurisdiction. On the other hand, the IRC's jurisdiction is
limited only to industrial matters. It is not said to be a superior court of record.
The High Court has also supervisory jurisdiction in civil or criminal
proceedings before any subordinate court. The IRC does not have this
jurisdiction.

Another area of statutory comparison relates to the composition of each court.

The High Court is and has always been presided over by a judge. The IRC
does not necessarily need to be presided over by a judge although the
chairman and his deputy have always to be lawyers (see section 96 (3) (4)). A
judge of the High Court is appointed by the President

p146

on the advice of the Judicial Service Commission. Members of the IRC are
appointed by the President but not on the advice of the Judicial Service
Commission.

Turning to procedures, the High Court is bound by rules of evidence in civil

or criminal proceedings. The IRC is not, its chief function being "to do
substantial justice between the parties before it" (see section 101 (2) of Cap.
517). On certain decisions the IRC has to have regard to Government declared
policy (see section 100 of Cap. 517). This is not the case with the High Court.

From the foregoing comparison of the statutory and procedural provisions

governing the two courts one clear fact emerges, namely, the IRC cannot be
equated to the High Court although it is a special court. Its jurisdiction is
certainly very limited. But the question remains, namely, is the IRC an
"inferior court" to the High Court for purposes of prerogative writs like the
one being sought by the present applicant? In the case of Rex v Chancellor of
St Edmundsbury and Ipswich Diocese exparte White (1) the Court of Appeal
held that certiorari does not lie to an Ecclesiastical court on the ground of
what was said to be long settled practice where certiorari did not lie to
ecclesiastical courts on account that those courts administered different type
 654

of law from common law and statutory law. However, at pages 222 and 223
Wrotlesley L.J. had this to say:

"Whenever, as a result of the establishment by Act of Parliament of some

new jurisdiction or some new tribunal exercising judicial or quasi-judicial
functions it is necessary to consider the application thereto of well-established
forms of remedy, the court will not be afraid to extend the older principles to
new circumstances."

D.M. Gordon in his article Certiorari to an Ecclesiastical Court seems to

suggest that the decisions is contrary to principle and authority. The court in
that case also considered the question of inferiority of a court which I consider
very persuasive in the present application. At page 205, Wrotlesley L. J said:

"One of the matters most in controversy, both in the Divisional Court and
here, was the question of whether the ecclesiastical courts were and are
inferior courts. And the more this matter was investigated the clearer it
became that the word "inferior', as applied to courts of law in England had
been used with at least two very different meanings. If, as some assert, the
question of inferiority is determined by ascertaining whether the court in
question can be stopped from exceeding its jurisdiction by a writ of
prohibition issuing from the King's Bench, then not only the ecclesiastical
courts but also Palatine courts and Admiralty courts are inferior courts. But
there is another test, well recognised by lawyers, by which to distinguish a
superior from an inferior court, namely, whether in its proceedings, and in
particular in its judgment, it must appear that the court wan acting within its
jurisdiction. This is the characteristic of an inferior court, whereas in the
proceedings of a superior court it will be presumed that it acted within its
jurisdiction unless the contrary should appear either on the face of the
proceedings or aliunde."

I am inclined to accept both tests. It goes without saying that the IRC in its
proceedings must act within its jurisdiction as provided by the Act. I am
mindful that the present chairman of the IRC is a judge of the High Court. But
she presides in the IRC not as judge of the High Court but as chairman of the
IRC exercising limited jurisdiction of that court. Thus after considering all the
statutory provisions governing the two courts, I have no doubt in concluding
that the IRC is not a superior court of record and in my judgment it is inferior
to the High Court for the purposes of this application.

The third head of argument related to whether the finality or ouster clause as
contained in section 101 (3) of the IRA takes away the jurisdiction of the High
Court to issue a writ of certiorari. Under this head both Mr Banda and Mr
Kinariwala cited a number of English authorities. On behalf of the applicant,
Mr Banda contended that the existence of a finality and ouster clause in
Section 101 (3) of Cap 517 tends to suggest that the proceedings in the IRC
 655

must end there. Counsel asked whether that meant that a party aggrieved by
the decision of the IRC cannot move the High Court; by way of an application
for an order of certiorari Mr Banda submitted that since the order of certiorari
is not an appeal, a court superior to the IRC can, on a proper application,
remove the proceedings and the decision of the IRC to the superior court for
purposes of quashing the same. Mr Banda submitted that on a consideration
of various decided cases the finality and ouster clause as contained in section
101 (3) of the IRA does not take away the remedy of certiorari sought by the
applicant in the present, application.

Mr Kinariwala submitted that the authorities cited by counsel for the applicant
are judgments, by Lord Denning. He did not elaborate but submitted that all
these cases should be distinguished from the present because those cases did
not contain the ouster clause consisting of the words as in the present case in
that section 101 (3) uses the word "final and binding upon the parties and shall
not be questioned in any proceedings or court." Mr Kinariwala pointed out
that in the cases, cited by counsel for the applicant the finality and ouster
clause did not contain the word "proceedings." He submitted that the word
"proceedings includes an application by summons petition or by way of writ
of certiorari. Counsel argued that it was not necessary that the legislature
should have specifically excluded an application by way of certiorari as it was
covered by the word "proceedings." He urged the court to construe an Act of
Parliament according to the intention declared by the legislature in the act. He
submitted that the language in Section 101 (3) is clear and explicit. Counsel
submitted that the judgment or order of the IRC by virtue of Section 101 (3)
cannot be challenged any proceedings whether commenced by writ,
originating summons, notice of motion, petition or by any prerogative writs.
Mr Kinariwala contended that the findings of the IRC to the effect that the
respondents were upgraded by the Board at its meeting of 25th July, 1978,
was a finding of fact and hence cannot be challenged.

Section 101 (3) of Cap. 517 reads:

"101 (3). An award or decision of the Court on any matter referred to it for
its decision or on any matter otherwise falling within its sole jurisdiction shall
be final and binding upon the parties thereto and on any parties affected
thereby, and such award or decision shall not be questioned in any
proceedings or courts."

The crucial phrase in this section is one that reads "shall be final and binding
upon the parties thereto" and "shall not be questioned in any proceedings or
court". In the Court of Appeal case of Pearlman v Governors of Harrow
School (3) the court considered a provision in the English Housing Act of
1974 with the phrase "final and conclusive." At page 742 Lord Denning had
this to say:
 656

"Those words "final and conclusive" have been considered by the courts a
hundred times. It has been uniformly held that they preclude any appeal to a,
higher court - in the sense of an appeal proper where the higher court reviews
the decision of the lower tribunal and substitutes its own decision for that of
the lower tribunal; see Westminster Corporation v Gordon Hotels Ltd. (1907)
1 K.B. 910; (1908) A.C. 142 and Hall v Arnold, (1950) 2K.B. 543. But those
words do not preclude the High Court from correcting the errors of the lower
tribunal by means of certiorari - now called judicial review. Notwithstanding
that a decision is by a statute made "final and conclusive", certiorari can still
issue for excess of jurisdiction, or for error of law on the face of the record
(see Reg v Medical Appeal Tribunal, Ex parte Gilmore (1957) 1Q.B. 574,
583); or a declaration can be made by the High Court to determine the rights
of the parties. It can declare the law by which they are found, irrespective of
what the lower tribunal has done, see Pyx Granite Co. Ltd v Ministry of
Housing and Local Government (1960) A.C. 260. It can even consider the
point of law by means of a case stated: see Tehrani v Restron (1972) 1 Q.B.
182."

Further, on the same page under a sub-heading "The No (certiorari Clause"

section 107 Lord Denning said:

"But it is said here that those decisions apply only to lower tribunals; and
that they do not apply to courts. It is said that Parliament has taken away
certiorari to county coverts. This argument is based on section 107 of the
County Courts Act 1959, which says:

'Subject to the provisions of any other Act relating to County

Courts, no judgment or order of any judge of County Courts nor any
proceedings brought before him or pending in his court, shall be removed by
appeal, motion, certiorari or otherwise into any other court whatever, except in
the manner and according to the provisions in this Act mentioned.' ''

To my mind that provision has no application to the present case. It applies

only to proceedings under the Act of 1959, just as if the words "under this
Act" were written into it. Certiorari is taken away in proceedings in which the
Act of 1969 gives jurisdiction to County Courts, such as section 39 (actions of
contracts and tort); section 48 (recovery of land); section 52 (Equity
jurisdiction) and section 56 (Admiralty jurisdiction). In all such matters
certiorari does not lie: but instead the statute gives a right of appeal on points
of law: see section 108. In so interpreting section 107, I am following the lead
of Cockburn C.J. in Ex parte Bradlaugh (1873) 3 Q.B.D. 509, 512, where
there was a "no certiorari clause." He said:

'I entertain very serious doubts whether that provision does not apply only
to matters in respect of which jurisdiction is given by that statute, and not to
matters in which jurisdiction is given by subsequent statutes: . . .'
 657

I am confirmed in this view by reference to section 108 of the Act, which

gives an appeal to the Court of Appeal on points of law.
It seems to me to be dealing with matters in respect of which the Act of
1959 gives jurisdiction to the County Court: and not to makers in respect of
which jurisdiction is given by subsequent statutes.

Moreover, in subsequent Acts giving fresh jurisdiction to the County

Court (additional to that in the Act of 1959), the Parliament has expressly said
whether there is to be an appeal (as in the Building Societies Act 1962, section
72 (5)), or no appeal (as in the Industrial and Provident Societies Act, 1965,
Section 42 (3) (b). In both those cases it uses the words "final and conclusive"
leaving the remedy by certiorari or declaration unimpaired.

So I would hold that certiorari lies in the case of a decision by the county
court judge under Schedule B to the Housing Act 1974 when he goes outside
his jurisdiction or there is an error of law on the fact of the record. "

I am inclined to accept the dicta of Lord Denning on both the interpretation of

the words "final and conclusive" appearing in a statute and also the
interpretation of "the no certiorari clause" in statute. The IRA does not
contain provisions for appeal against the decisions of the IRC. What remedy is
then available to a party aggrieved by the decision of the IRC on a point of
law? The Act is silent. There is no provision of appeal.

The question of ouster of jurisdiction by statute has been fully considered in a

recent Privy Council case of South East Asia Fire Bricks v Non - Metalic
Union (4). On account of the view I take of than case, I propose to set out the
facts from the headnote. The brief facts of that case were that, employees of
the appellants were called out on strike by their union. The appellants
informed the employees that unless they rebury to work within 48 hours, their
services would be deemed to be terminated. The dispute was referred to the
Industrial Court of Malaysia. Meanwhile, the employees on the advice of their
union sought to return to work but the appellants refused to allow them to do
so and locked them out. The question whether the locking out was legal was,
also referred to the Industrial Court. The Industrial Court made an award
favour of the union and the employees on the ground that the employees had
not terminated their contracts by striking and ordered the appellants to
reinstate them. The appellants applied to the High Court of Malaya for
certiorari on the grounds of an error of law on the face of the record. The High
Court granted the application and quashed the award of the Industrial
Relations Court. The Federal Court of Malaya held that there had been no
error of law and reversed the decision and restored the award of the Industrial
Court. On appeal by the appellants to the Privy Council, the question arose
whether the High Court had jurisdiction to quash an award of the Industrial
Court on the ground of error of law. The respondents contended that the
 658

power of the High Court to grant certiorari to quash awards of the Industrial
Court for errors of law had been ousted by section 29 (3) (a) of the Malaya
Industrial Relations Act, 1967, which provided that "an award of the court
shall be final and conclusive and no award shall be challenged, appealed
against, reviewed, quashed or called into question in any court of law." It was
held in that case that section, 29 (3) (a) of the 1967 Act, was elective to
exclude powers of the High Court of Malaya to review the decisions of the
Industrial Court of Malaysia, by certiorari because the expression "quashed"
or called into question in any court of law" in than paragraph was clearly
directed to and was amply wide enough to include certiorari procedure. Lord
Fraser of Tullybelton in the course of his speech had this to say are page 692:

"In considering the effect of s. 29 (3)(a) two questions arise, and it is

important to keep them separate. The first question is whether the paragraph
has any application to certiorari, so as to oust it, or whether it merely prohibits
appeals. If it does apply to certiorari, the second question is whether,
notwithstanding the ouster, certiorari is still available to correct an error on the
face of the record. Taking the first question first, the provision that an award
shall be 'final' might exclude appeals but it would not be enough to exclude
certiorari; see Re Gilmore's Application (1957) 1 All E.R. 796, (1957) 1 Q.B.
574 Mohammed v Comr of Lands and Mines, Trengganu (1968) 1 M.L.J 227.
It is unnecessary to consider whether the addition of the Word 'conclusive' and
of the provision that no award shall be 'challenged, appealed against or
reviewed' would have that effect, because the final words 'quashed or called in
question any Court of Law' seem to their Lordships to be clearly directed to
certiorari. 'Quashed' is the word ordinarily used to describe the result of ant
order of certiorari, and it is not commonly used connection with other forms
of procedure (except in the quite different sense of quashing sentience after
conviction on a criminal charge). If 'quashed' were for some reason not
enough, the expression 'called in question in any Court of Law' is in their
Lordship's option amply wide enough to include certiorari procedure.
Accordingly they are of opinion that para. (a) does oust certiorari at least to
some extent.

The second question then arises. The decision of blue House of Lords in
Anisminic Ltd v Foreign Compensation Commission (1969) 1 All E.R. 208,
(1969) 2 A.C. 147 shows that, when words in statute oust the power of the
High Court to review decisions of an inferior tribunal by certiorari, they must
be construed strictly, and that they will not have the effect of ousting that
power if the inferior tribunal has acted without jurisdiction or if it has done or
failed to do something in the course of the inquiry which is of such nature
that its decision is a nullity' (1969) 1 All E.R. 208 at 213, (1965) 2A.C. 146at
171 per Lord Reid). But if the inferior tribunal has merely made an error of
law which does not affect its jurisdiction, and if its decision is not nullity for
some reason such as breach of the rules of natural justice then the ouster will
be effective."
 659

The crux of the matter on this point in the instant application is whether
section 101 (3) Cap. 517, effectively and clearly ousts the jurisdiction of the
High Court to review the decisions of the IRC by way of certiorari or merely
prohibits appeals ? The Privy Council in the case cited relied very heavily on
the presence of the word "quashed" in the ouster clause. But the court further
indicated that if "quashed" were for borne reason not enough, the expression
"called in question in any court of law. . . " Wilson their opinion "amply wide
enough to include certiorari procedure. " The expression "called into question
in any court of law" as used in the Malaysian Statute is in my opinion similar
to the expression "shall not be questioned in any proceedings or court" used in
section 101(3) of Cap. 517. The Privy Council decision is not binding on this
court. But it is decision of court of highest esteem which decided a point
which is on all fours with the point raised by the present application. I a
mindful that the Malayan Statute deals only with "an award". But the wording
of our sections is an "award or decision."

After very anxious moments following upon the Privy Council decision. I
hold that section 101(3) of the Industrial Relations Act, Cap 517 excludes the
power of the High Court to issue orders of certiorari removing the proceedings
or decisions of the Industrial Relations Court into the High Court for purposes
(if bad) of quashing the same. This conclusion makes consideration of the
application on merit unnecessary.

p152

But before leaving the matter, I would like to draw the attention of the
authorities concerned that in its present form the IRA may result in certain
caves causing lot of injustice. I find it rather difficult to imagine that it was
the intention of the legislature to deny a party aggrieved by the decision of the
IRC both the right of appeal and the right to have the decision of the IRC
reviewed by way of certiorari. Without touching on the merit of the
application, this may be classic case where perhaps the aggrieved party finds
himself with no remedy assuming the IRC's decision is bad in law. I say no
more on that but I hold serious views that there is an urgent need to have
second look at the Act. Be that as it may, my ruling is that the application is
misconceived and accordingly dismissed.

On account of the issues raised, I order that each party will bear its own costs.

Application dismissed
 660

WILHEIM ROMAN BUCHMAN v ATTORNEY GENERAL (1994) S.J.

76 (S.C.)

SUPREME COURT
CHAILA, CHIRWA AND MUZYAMBA, JJ.S.
5TH OCTOBER, 1994 AND 20TH OCTOBER, 1994
S.C.Z. JUDGMENT NO. 14 OF 1994
S.C.Z. APPEAL NO. 74 OF 1994

Flynote

Deportation - Court's refusal to grant of extension of time

Headnote

The appellant was deported some time back. He took out summons to
challenge the action. He applied for an extension of time in which to wind up
his affairs. That was granted. When that period expired, he made an
application to the High Court for further extension. It was heard by
Commissioner A J Nyangulu who extended the period for further two months.
When that period expired the appellant applied for another extension. The
learned Commissioner turned down tat application and the appellant has
appealed against the refusal by Commissioner A J Nyangulu.

Held:

(i) A matter that is not raised in the court below cannot be raised
before a higher court as a ground of appeal.

For the appellant: Mr E J Shamwana SC

For the respondent: Mr A G Kinariwala, Principal State Advocate

__________________________________________
Judgement

CHAILA, J.S.: delivered the judgement of the Court.

 661

This appeal arises out of the decision of the High Court refusing to extend the
period of stay in Zambia. The appellant was deported some time back. He
took out summons to challenge the depotation order. The High court heard
the case and dismissed the action. He applied for an extension of time in
which to wind up his affairs. That was granted. When that period expired, he
made an application to the High Court for further extension. It was heard by
Commissioner A J Nyangulu who extended the period for further two months.
When that period expired the appellant applied for another extension. The
learned Commissioner turned down that application and the appellant has
appealed against the refusal by Commissioner A J Nyangulu. There were no
heads of argument filed, but the appellant’s counsel indicated that the issue
was a simple one. He argued that the learned Commissioner should have
recused himself in the matter on the ground that his firm had represented one
Catherine Mugala in a criminal matter. Mr Shamwana pointed out that he had
some difficulty in that he did not have a record to support what he was saying.
He has not filed an affidavit because he did not deal with the matter in the
lower court. He informed the court that the appeal was against Commissioner
Nyangulu’s handling of the case. On an inquiry by the court Mr Shamwana
admitted that Commissioner Nyangulu had not been asked to recuse himself
when the matter came before him for the second time.

For the State Mr Kinariwala submitted that there was no evidence that the
learned Commissioner had been requested to recuse himself. There was no
objection raised and if it had been raised the learned Commissioner would
have considered the matter and should have made a ruling. He submitted that
it was late in the day for the appellant to come to the Supreme Court and raise
the matter involving the appellant came before the learned Commissioner
twice. In the first instance the Commissioner extended the period and when
that period expired the appellant went back to him. During that hearing the
appellant never raised any objection to the learned Commissioner’s handling
of the case.

We have noted the objection raised by the learned Principal State Advocate.
He has submitted that the appellant should go to the executive authorities for
such extensions. The record shows of course that the appellant has stayed in
Zambia for more than a year now and he has not according to him completed
finalising his affairs. Section 24 of the Immigration and Deportation Act
chapter 122 of the Laws of Zambia provides:

p78

(1) Any person required by notice under section twenty-three to leave Zambia
who on receipt of such notice has lawfully remained in Zambia longer than
seven days may within forty eight hours of receiving such notice, deliver to
any immigration officer police officer or prison officer written representations
 662

to the Minister against such requirement and such representations shall be

placed before the Minister without delay.
(2) If, after considering such representations, the Minister does not think fit to
exercise to powers in relation to the issue of permits or the exemption of
persons from the classes set out in the Second Schedule, the person who made
such representations shall be notified that his representations have been
unsuccessful.

It is in the light of this section that Mr Kinariwala has complained that the
courts are going too far in granting extensions. We fully agree with his
sentiments. The people concerned should make representations to the
executive authorities. As regards this matter, we note that the matter came
before the High Court before Bweupe J. as he then was and granted three
months to the appellant.

Later there was an extension made by the learned commissioner Nyangulu

which culminated into an indefinite order when the appellant appealed to this
court.

Mr Shamwana has raised before us some matter which was not raised before
the Commissioner. Mr Shamwana has not supported his complaint that the
learned Commissioner should have recused himself. If he had done so in the
lower court then the Commissioner would have made a ruling. This matter
was not raised before the Commissioner, it cannot be raised in this court as
ground of appeal before this court. The record, however, shows that the
learned Commissioner was never biased in any way. In the first instance he
granted an extension. Later he refused to extend the period but when the
appellant appealed, he granted an indefinite stay in Zambia. The ground
raised by the appellant in this court cannot succeed.

The appeal is therefore dismissed with costs.

 663

MANAL INVESTMENT LIMITED v LAMISE INVESTMENT

LIMITED

Supreme Court
Sakala, Ag.D.C.J, Chaila and Chibesakunda, J.J.S.
9th August, 2001 and 18th January, 2001
(SCZ Judgment No. 1 of 2001)

Flynote

Civil Procedure – Interim injunction – Propriety of single judge of the

Supreme Court to grant an injunction.

Headnote

This is an appeal against the refusal of the High Court to grant an injunction.
The appellant was the owner of a cloth registered as a protected design
number 3/97 under the Registered Design Act. The appellant used the said
cloth, the registered design, in the manufacture of mattresses for sale to the
public. The respondent on the other hand, had been importing a cloth similar
to that of the appellant. The said imported cloth was also being used by the
respondent in the manufacture of mattresses with a form thinner than that
used by the appellant and passed off as a product of the appellant. The
appellant commenced an action by a writ of summons claiming, among others
for an injunction to restrain the respondent whether by it’s self, servants or
agents whosoever from selling and trading in mattresses on the Zambian
market which are covered with a cloth or design registered as design number
3/97. Before the main action could be heard the appellant applied for an
interlocutory injunction before a High Court Judge. The learned trial judge
dismissed the application with costs. The appellant subsequently applied for
an interim injunction before a single judge of the supreme court. The single
judge granted the application.

Held:
 664

(i) In terms of section 4 of the Supreme Court Act, a single judge

has no powers in matters of injunctions as the same involved a
decision of an appeal or a final decision on the matter.

(ii) Where the High Court has refused to grant an interim

injunction, the aggrieved applicant may have no immediate remedy.
The Supreme Court may grant an interim injunction pending
determination of the main action in order to prevent irreparable
damage.

A Wright of Messrs Malambo and Silwamba for the appellant.

C.M Banda and B.L Mupeso of Messrs Chifumu Banda and Associates for the
respondent.

Judgment

SAKALA, ACTING D.C.J., delivered the judgment of the court.

When we heard this motion at Kabwe, we restored the main appeal which had
been withdrawn. We treated the hearing of the motion as the hearing of the
main appeal itself. The Order of a single judge purporting to grant the
injunction was confirmed as the order of the full court. We indicated then that
we shall give our reasons in a written judgment. We directed that the main
action must proceed to trial without waiting for the written judgment. We
now give our reasons.

The appeal was against the refusal of the High Court to grant an injunction.
The brief facts, in so far as they are relevant to the appeal were that, the
appellant was the owner of a cloth, registered as a protected design number
3/97 under the Registered Design Act. The appellant used the said cloth, the
registered design, in the manufacture of mattresses for sale to the public. The
respondent on the other hand, had been importing a cloth similar to that of the
appellant.

The said imported cloth was also being used by the respondent in the
manufacture of mattresses with a foam thinner than that used by the appellant
and passed off as a product of the appellant. According to the appellant, the
mattresses produced by the respondent were manufactured with thin foam
thereby making the cost of production cheap by passing it as the appellant’s
product. The fact that the appellant had a certificate of registration for the
cloth in issue was common cause.

The appellant commenced an action by writ of summons claiming, among

others, for an injunction to restrain the respondent whether by itself, servants
 665

or agents whosoever from selling and, or trading in mattresses on the Zambian

market which are covered with a cloth or design registered as design number
3/97. Before the main action could be heard, the appellant applied for an
interlocutory injunction before a High Court judge. In a short ruling, very
difficult to understand the reasoning, the learned trial judge dismissed the
application with costs, but put the main action on the fast track and ordered
that the trial commence forthwith. But on 22nd September, 1999, the
appellant, dissatisfied with the trial judge’s ruling filed a notice of appeal to
the supreme court. However, on 13th October, 1999, the appellant applied to
a single judge of this court for an injunction pending determination of the
matter. The single judge, granted an interim injunction pending determination
of the matter. The single judge, granted an interim injunction on 27th October,
1999, and after hearing both parties made the interim injunction on 19th
March, to continue pending trial. After obtaining the injunction pending trial
before a single judge, the appellant filed a notice on 1st February, 2000, to
discontinue appeal number 135/99 as they had obtained what they had wanted
by the main appeal. But on 5th May, 2000, the appellant filed an ex-parte
summons for leave to institute committal proceedings against the respondent
for disobeying the injunction. It is at this stage that it was realized that in
terms of section 4 of the Supreme Court Act, a single judge had no powers in
matters of injunctions as the same involved a decision of an appeal or a final
decision of the matter. This meant the application for an interim injunction
before a single judge and the Order granted were misconceived.Hence, the
motion to restore the appeal was discontinued on 1st February, 2000. Indeed,
the discontinuance of the appeal was also misconceived because it was based
on the assumption that the order of the single judge was valid at law, which
was not the case. For that reason, we restored the appeal and treated the
hearing of the motion as the hearing of the main appeal against the refusal by
the High Court to grant an injunction.

The point must, however, be emphasized that the grant or refusal of an

injunction is a matter involving the decision of an appeal or a final decision.
Thus, a single judge has no power to determine a matter involving a decision
of an appeal or a final decision (Section 4, Supreme Court Act Cap 25). We
are mindful that this position is bound to cause difficulties in practice as the
Supreme Court does not sit everyday. Thus, in a case of urgency, where the
High Court has refused to grant an interim injunction, the aggrieved applicant
may have no immediate remedy and by the time the appeal is heard,
irreparable damage may already have been caused. There is therefore, need to
look at the provision relating to appeal in injunction matters.

Turning to the appeal itself, written heads of argument were filed with the
court based on two grounds appeal. The first ground alleged an error on the
part of the trial judge in not giving reasons for his refusal to grant the
injunction. We have looked at the short ruling by the learned trial judge. To
 666

appreciate the gist of the first ground, it is imperative to set out the ruling in
full. The ruling reads:

(Sic)
“I have the injunction I do not need to go into the ments of the case, this is an
issue of commercial trading, and there is a question of design and designation
in the alleged design. This designation does not go to rast of irrequability nor
one that goes within the principle of the quoted case in American Cyanamid
case, the question of irrequability does not own, and I dismiss the applicant
with costs. If I will however put it under the Font Haute and order that trial
commence fourth”.

The above ruling is quoted verbatim from a record certified as a true copy of
the Deputy Registrar. It does not reflect seriousness in the preparation of a
record of appeal.

According to the learned trial judge, the question of irreparability was not an
issue. He did not say why that was so. Yet, the case for the appellant was that
they had registered their design and had a certificate of registration and until
such time, were entitled to the protection of the law. The ruling of the trial
court was too short and gave no reasons. On this ground alone this appeal
ought to have succeeded.

The second ground of appeal alleged that the learned trial judge erred by not
taking into account the principle of the law governing the grant of injunctions
and in particular, the provision of section 14 (1) of the Registered Design Act.
Our short answer is that there was no ruling at all in this matter which also is a
good ground for allowing the appeal. In our considered view, the learned trial
judge overlooked the salient facts of the case as established by the evidence.
First and foremost, the appellant presented a design to the Registrar of
Designs. The design was registered. At the material time, the registration was
still in place. Secondly, by registering the design, the appellant by law,
enjoyed copyright privilege (See Section 14 Cap 402). The appellant applied
for an injunction to protect the right they acquired by registering the design.
Indeed, the issue whether the design registered by the appellant is same or
similar to the cloth used by the respondents is for the trial court. We are
satisfied that as long as there is a design registered under the Act, it ought to
be protected until successfully challenged. Indeed, the fact of registration
increases the weight of the balance of convenience in favour of the registered
owner. In the present case, the respondent admitted in their affidavit that the
appellants’ products covered in the design cloth are of superior quality
compared to theirs. We were satisfied that if an injunction was not granted in
these circumstances, irreparable damage would have been caused to the
appellant.
 667

For the foregoing reasons, we granted the interim injunction pending the
determination of the main action.

Appeal allowed